Torts

 

 

 

Justice M. Cheshin

He was born on March 25, 1992. When he was two years old, we improved his appearance and gave him understanding. Today he is about seven and a half. Long may he live. I am, of course, referring to the Basic Law: Human Dignity and Liberty, the law enacted in honor of human dignity and liberty. Human dignity is this central pillar of this law. The law is infused with human dignity. Human dignity gives it life. I had hoped that the petition before us would drive a stake deep into the bedrock of our law and that, above ground, this stake would be a mast, flying the flag of human dignity. All would know – all over the land – that the beginning, the middle and the end are human dignity. That in the absence of human dignity there is neither man nor society. This was my hope; this was my expectation. I am sorry that we missed this opportunity. We will not despair; we wait for tomorrow.

The Facts

2.    Our case concerns a screenplay written by the playwright Motty Lerner. It is called “The Kastner Trial.” Israel Television was scheduled to broadcast, and did broadcast, the screenplay in three parts, beginning on November 7, 1994 – the 50th anniversary of Chana Szenes’ murder by the Gestapo. The screenplay is rooted in the actual events that occurred in Hungary during the Second World War, in 1944, and during the Kastner trial, which took place in Israel from 1953 through 1958.

3.    First, there was the terrible tragedy that befell the Jews of Hungary during the Second World War – the murder of these Jews by the Nazis and the attempts made to rescue some of them from this inferno. This tragedy was the background to the indictment filed by the Attorney-General of Israel against Malchiel Greenwald, charging him with defaming Dr. Yisrael Kastner. In 1944, Dr. Kastner was one of the leaders of Hungarian Jewry. Greenwald distributed a pamphlet in which he publicly accused Dr. Kastner of being guilty of the following four charges, in the words of the court:

(a) Collaboration with the Nazis;

(b) The “indirect murder” or “preparing the ground for the murder” of Hungarian Jewry;

(c) Profiteering with a Nazi war criminal [S.S. Commander Kurt Bacher];

(d) Helping that criminal evade punishment after the war.

Greenwald’s trial was conducted in the Jerusalem District Court, with President B. Halevi presiding. Ultimately, President Halevi decided to acquit Greenwald of three of the four counts of defamation. Greenwald was only convicted on the third count. In recognition of his acquittal on all the other counts, he was fined the token sum of one Israeli Lira. DC (Jer) 124/53 Attorney General v. Greenwald [55].

The Attorney-General appealed the district court’s judgment. In a panel of five judges, the Supreme Court accepted the main part of the appeal. Greenwald was convicted of charges (a) and (b). With respect to charge (a), he was convicted by a majority opinion of four against one. His acquittal on charge (d), however, remained intact. See CrimA 232/55 Attorney-General v. Greenwald [47].

4. Motty Lerner’s screenplay is the third floor of the story, built on the two floors underneath. The first floor is the tragedy that struck Hungarian Jewry in 1944. The second floor is the drama played out in the Jerusalem District Court during the Greenwald trial, the trial known as the “Kastner Trial.” The third floor is the drama on stage – Motty Lerner’s screenplay “The Kastner Trial.” Whoever saw the play on television – and I saw it – knows that the playwright is particularly gifted. And we know that the play’s impact on viewers is directly proportional to the talent of the playwright and the power of the play.

5. One paragraph in the play particularly troubles the petitioners here. We refer to the part where Mrs. Catherine Szenes, the mother of Chana Szenes, is cross-examined. Mrs. Szenes appeared as a witness in the trial and was cross-examined by Greenwald’s attorney. During her testimony, Dr. Kastner repeatedly interrupts her, until the climax in which he accuses Chana Szenes of betraying her comrades to the Gestapo. The script reads as follows:

“Kastner

(angrily, at Catherine Szenes):

How dare you criticize me? Who even asked your daughter to come to Budapest? What did she think she would do? Due to her own recklessness, and the arrogance of those who sent her, she crossed the border like a new recruit and was captured five minutes later. And I will tell you who told the Hungarian police that Palgi and Goldstein were on their way to me. It was her! Your daughter, Chana Szenes, the heroine! She broke under interrogation and revealed everything. I can imagine the sort of tortures she underwent. Nobody could have withstood such torture. But it was not because of me that Palgi and Goldstein were arrested, but because of her!

Catherine Szenes:

Not true!!! “

These lines formed the basis of the petitioners’ claim. The petitioners request that the paragraph be deleted from the play. They claim that the statement that Chana Szenes betrayed her two comrades, Peretz Goldstein and Yoel Palgi, to the Gestapo, is a lie, and that this will irreparably defame Chana Szenes. In fact, they claim, Chana Szenes bravely endured severe torture at the hands of the Gestapo and did not divulge secrets to her torturers. This was the case with Goldstein and Palgi, and it was also the case regarding the secret code that she had for British intelligence transmissions, which the Nazis wanted in order to transmit disinformation.

6.    Petitioners submitted evidence to prove their claim. In fact, it is undisputed that Kastner’s statement in the play was false. There is not even a shred of evidence that Chana Szenes betrayed her comrades to the Gestapo. Thus, we may dispense with the first floor, the events that occurred in Hungary in 1944. Proceeding to the second floor – the trial itself – all agree that, at Greenwald’s trial, Kastner never made the allegation attributed to him by Lerner. In other words: Kastner’s words in the play, as cited above, have no basis in reality and are no more than a figment of the playwright’s imagination.

7.    Motty Lerner and the Broadcasting Authority were obviously aware of the sensitivity of televising the play. Thus, each segment was prefaced by the following paragraph:

The events depicted in this film were inspired by the Kastner-Greenwald trial. Nonetheless, the movie should not be regarded as a recreation of these events, but rather as a drama of historical fiction.

Furthermore, the play was shown at the Tel‑Aviv Cinematheque. At the time of the screening, an explanatory sheet was distributed to the audience, entitled “The Author’s Apology.” The following is Motty Lerner’s explanation of the screenplay:

The film ‘The Kastner Trial’ is a fictional drama inspired by events that actually occurred. The drama strives to integrate these historical events with the behavioral patterns of dramatic characters. Casting events in this manner obviously necessitated divergence from how the events actually occurred and, as such, posed a difficult dilemma concerning the degree of historic accuracy required in an artistic creation.

This dilemma may be avoided by responding that the film is merely an artistic creation, not a historical document. As such, it must be assessed according to artistic standards, as opposed to historical ones. Even so, there is no escaping the fact that the script offers an interpretation of events which are the subject of sharp controversy; clearly many viewers will choose to see it as interference with the historical record, rather than simply as an artistic creation. Given that, while writing the script, I wavered between these two approaches. As such, I think that I should clarify some of the rules that I set for myself.

As a rule, I strove to be as accurate as possible. Even so, and specifically with respect to scenes that took place behind closed doors, where I was unable to discover what had actually happened, I assumed poetic license to recreate events with my own imagination, with the reservation that the events must be consistent with the historic reality. I did my best to utilize this freedom in order to give the characters depth, and to put the events that actually occurred into a sharper focus. My working principle was that I would not facilitate my task by deleting events that contradicted my own political, historical world-view. This was not just because I wanted to act with artistic and intellectual integrity, but also because it was precisely those events that challenged my political views that created a more authentic, penetrating and moving drama.

I hope that I have succeeded in finding the optimal balance between the historical imperatives, the need to express my own personal worldview, and my commitment to the quality of the artistic creation.

Motty Lerner (emphasis added).

About ten days before the first showing, on October 28, 1994, an article appeared in the weekend section of the newspaper Yediot Aharonot, entitled “Did She Break?”

A huge controversy is liable to erupt following the new television series, which will accuse the paratrooper Chana Szenes, who was sent to the aid of Hungarian Jewry during the Holocaust, of breaking under interrogation and betraying her comrade paratroopers to the Fascist police. The accusation comes from the mouth of Yisrael Kastner, the organizer of the rescue train from Budapest and the man “who sold his soul to Satan.” Author Aharon Meged: “this is a travesty and lies.”

Ms. Aspa Peled, the author of the article, interviewed Mr. Lerner:

[Peled:] “... Motty Lerner, is the legend a lie?

[Lerner:] I see myself as someone disclosing the subjective truth of Kastner and the members of the Rescue Commission, who were trapped in a web of mythology and myth, one which they could not escape. Perhaps they were even afraid to do so. It seems to me that today we have the maturity to understand that Chana Szenes was indeed a great heroine, even though she may have broken under interrogation. In the final analysis, how many of the Israeli soldiers who fell prisoner to the Egyptians or the Syrians did not break under interrogation? In my view, this in no way detracts from her bravery.

[Peled:] So was she a traitor or not?

[Lerner] I was not present at the interrogation and I do not know. What is clear is that Chana crossed the border and she had one contact address that she had to reach – Kastner. Three days later, Goldstein and Palgi reached Kastner without him even knowing that they were on their way to him. I have no tools with which to examine the matter and so in the film, I present it as Kastner’s opinion.

[Peled:] But Kastner never said that.

[Lerner:] Kastner was convinced that Chana had turned the paratroopers in. This I know from hints in his writings.

In reaction to Mr. Lerner’s last comments regarding the “hints” in Dr. Kastner’s letters, we note that this argument, nor anything similar to it, was ever raised at the trial before us, neither directly or even by implication. All agree that the words attributed to Dr. Kastner in the play are false, both in that cursed year 1944 in Hungary, and in Greenwald’s trial. There is not a shred of evidence that Chana betrayed her comrades to the Gestapo. Quite the opposite. Furthermore, Dr. Kastner never made the statements attributed to him by the screenplay’s author. In plain language, it may be said that the accusation leveled at Chana Szenes by Dr. Kastner in the play is defamatory.

This completes our review of the facts, some of which we shall revisit during the course of our comments.

The Broadcasting Authority’s Duty and Our Authority to Disallow the Broadcast

8.    Prior to entering the chamber of values and truth, we will say a few words regarding our authority to order the Broadcasting Authority to comply with the petitioners’ request. No one questions our authority to prevent the Broadcasting Authority from televising the disputed paragraph. The Broadcasting Authority was entitled to refuse to broadcast “The Kastner Trial,” either in its entirety or in part, and its decision to reject the petitioners’ request to delete the paragraph in question is subject to our judicial review. The question is not whether this is the sort of matter that the High Court of Justice can review and reverse. Up to this point, my colleagues and I agree. But from here on, our ways part. My colleagues argue that the petitioners did not succeed in crossing the threshold; in my opinion they indeed crossed it, and with room to spare.

The Issue in Dispute

9.    These are the two forces, each pulling in different directions. On one end, Motty Lerner’s freedom of expression and artistic creation and, on the other, human dignity. The dignity of Chana Szenes, a young woman murdered by the Gestapo, who is unable to come and defend her dignity. Shall we accede to the petitioners’ request and enjoin the Broadcasting Authority from broadcasting that paragraph, about one minute long, since it violates Chana Szenes’ dignity? Or, in recognition of the creative author’s freedom of expression and creation, shall we refuse to grant their request?

For the purpose of examining the matter, let us position all the leading actors on stage, present them individually, and listen to their monologues. All being assembled on the stage, we will allow them to converse among themselves and we will then know whose rights prevail. We shall divide our comments in this respect into three sections. First, we shall discuss freedom of expression and the right to reputation, as concepts and legal principles. We shall then examine the hierarchical status of freedom of expression and the right to reputation. Finally, we will have them confront one another, so that we can measure the power of one against the other.

We will begin our discussion by examining the freedom of expression and creation, and thereafter we shall proceed to human dignity.

Freedom of Expression and Artistic Creation

10. Freedom of expression and artistic creation have deep roots in Israeli law. We need not recap their origin; this has been explained on many occasions. I have expressed my own opinion regarding certain aspects of the freedom of expression and the conflict between freedom of expression and other values, occasionally at length, in at least three places. They are, in chronological order, HCJ 606/93 Kiddum [28] at 17; HCJ 4804/94 Station Film [12] at 688 {55}; FH 7325/95 Yediot Acharonot v. Krauss [48]. In these three decisions, as in this case, I was in the minority. My opinion has not changed. While I obviously do not contest the basic right of freedom of expression and artistic creation, I nonetheless feel that my colleagues have gone too far in the protection they grant freedom of expression, in the process curtailing other, extremely important rights.

11. I will not repeat what I wrote and will limit my comments to the issue at hand. Freedom of expression is not a single unit. It is a federation, a federation of rights and interests. There is the chronicle and the speech, the polemic article, fiction and poetry, criticism of the government and commercial advertising. There is the procession and the demonstration, the play and the film. Each of these modes of expression reflects a particular value, and one interest is not identical to the other. Commercial advertising does not benefit, nor should it, from the same protection granted to a chronicle. Instead of referring to freedom of expression in the abstract, we must pick out the particular component relevant for our purposes. Obviously, our concern is not merely with labels – fiction, non‑fiction, poetry or demonstration. It is incumbent upon us to conduct a deep investigation in an attempt to understand the interest requiring protection, its substance and the substantive content of the right presented before the Court. It was in this context that I wrote in Station Film [12] at 689 {56-57}:

In the house of freedom of expression there are various modes of expression and speech, which have a place in the sanctuary, and there are other modes of expression and speech that do not. When freedom of expression clashes with opposing interests, the various modes of expression and speech will wage the battle, each with its own intensity. Freedom of expression is not an idol, before which we should prostrate ourselves wherever we encounter it. Upon concluding that the matter at hand involves one of the derivatives of freedom of expression – an expression that finds shelter under the wings of the broader principle – we test its mettle before sending it out to battle with conflicting interests. Our way is the way of atomization, or, if one prefers: the way of molecularization - dividing the field of freedom of expression into individual categories, according to the type of interest which we protect. There is an article in a newspaper and then there are belles-lettres, there is a description of events and then there is a speech, there is a commercial advertisement and then there is criticism of the regime, there is societal criticism and then there are parades. Each one of these, and others besides them, reflect a certain interest, and the strength of the right will be equal to the strength of the interest. The same applies to modes of expression and speech: there are newspapers and then there are films, there is theatre and then there is television, there is radio and then there is the stage. 

In the same vein I also wrote:

[P]eople often try to explain the nature of one type of freedom of expression using interests that support freedom of expression of another type, and thus we find ourselves mixing apples and oranges. Hence, for example, when considering freedom of the press or a documentary report on certain events, it is simple for the Court to establish the boundaries and strength of freedom of expression in a way which is commensurate with the issue in a manner compatible with the issue being discussed before it ‑ an issue forming one of the pillars of the democratic regime.

Id. At 689 {57-58}.

See also Id. at 688-91; Kiddum [28] at 25‑28; Krauss [46] at 78-80.

12.  Let us return to our case. Which kind of freedom of expression are we referring to? If you will, what is the interest that freedom of expression, in this case, places against other conflicting interests? We are dealing with a screenplay, but not one that is the fruit of the playwright’s imagination from beginning to end. Our concern is with a special kind of play known as a docudrama. In other words – a creation including both drama and documentation. Facts based on reality interpolated with dramatic foundations. The veneer is dramatic, but actual events, which all or at least some of the spectators have heard of and are familiar with, are inseparably woven into the drama. Needless to say, in this kaleidoscope of life and imagination, each docudrama is different. There is no fixed degree of imagination or historical facts; it is entirely up to the creator, who may broaden or narrow either.

13.  “The Kastner Trial” is deeply rooted in historical facts. The plot is basically true, taken from “real life,” and the heroes of the play appear with their own names. Thus, the judge is Judge Binyamin Halevi, the prosecutor is the Attorney-General, Haim Cohen. The attorney for the defense is Shmuel Tamir. The accused is Malchiel Greenwald. Ms. Catherine Szenes, Ms. Hanz Brand, Yoel Palgi and, most importantly, Chana Szenes, also appear in the play. Motty Lerner, the playwright, took specific real life events and cast them into dramatic format. The innocent viewer, as well as the informed viewer, do not know which parts of the play are true and which are false. Did Kastner really say the words attributed to him? Is there any factual basis for Kastner’s allegations against Chana Szenes, or perhaps Kastner is not telling the truth? The viewer does not know.

This is the artistic creation before us; it contains elements of both life and drama. Given what we know about the play, I reject Lerner’s statement that the play is “a fictional drama inspired by events that actually occurred.” The drama is by no means fictitious and the “events that actually occurred” were not just a source of “inspiration” for the author. They are an integral, indistinguishable part of the creation. Nor can I concur that “the script offers an interpretation of events which are the subject of sharp controversy”. The issue before us is not disputed – all agree that Chana Szenes did not betray her comrades to the Gestapo. I also find it difficult to accept Lerner’s statement that “I strove to be as accurate as possible.” His intentions may have been commendable, but his actions were not. In the disputed paragraph Motty Lerner was not just inaccurate – he spoke untruthfully. This is not a question of “poetic license,” as Motty Lerner claims. Motty Lerner did not even comply with his own commitment that “the result of the events must be consistent with the historic reality.” Kastner did not say the words that Lerner attributed to him. Nor are the words substantively correct. Motty Lerner thought that Kastner’s outrageous words in the play would raise the dramatic tension; this indeed is their effect. I am, indeed, at a loss to find any other reason for the scene in which the actor portraying Dr. Kastner lashes out at Chana Szenes. The actor playing Dr. Kastner was Sasson Gabbai; his performance was superb and moving and anyone who saw Dr. Kastner in the play making his accusation against Chana Szenes could not fail to be convinced that his words were true. I find it difficult to accept the claim that “The Kastner Trial” is a “fictional drama.” The drama is far from being “fictional.”

14. This cocktail of imagination and reality situates the play somewhere between a documentary‑chronicle and a dramatic creation. As its name indicates, it is a docudrama, with the primary emphasis being on the documentary‑chronicle component. Chana Szenes was imprisoned and tortured by the Nazis. Yoel Palgi and Peretz Goldstein were captured by the Nazis. Chana Szenes was executed by the Nazis. All of these are historical facts, and they are all woven around Dr. Kastner’s outrageous accusation thrown at Chana Szenes’ mother. If all of the surrounding facts are true, then wouldn’t the innocent viewer believe that statement to be equally accurate? Why wouldn’t one believe that Dr. Kastner had actually said those words and why wouldn’t he believe that Kastner knew, or believed, that Chana Szenes had betrayed her friends to the Nazis? It would have been different had Kastner stood up in the middle of Catherine Szenes’ testimony, attempted to open his mouth and then begun to float around the room, like a character out of one of Marquez’s books. But this was not the case.

Personally, it seems to me that the playwright cannot hide behind the label of a “fictional drama,” nor would it be appropriate for us to allow him or her to do so. The words attributed to Dr. Kastner regarding Chana Szenes are clearly perceived as part of the docudrama’s documentary aspect. In any event, we certainly cannot see this as belonging to the dramatic part of the play, distinct from the reality being displayed on stage. If we imagine the documentary and dramatic parts of the play as celestial objects with their own individual gravitational pull, then Dr. Kastner’s fabricated statement revolves in a “figure 8” around these two bodies. In other words, Dr. Kastner’s fabricated statement purports to have a little of this and a little of that: a description of the reality, as it supposedly was – in Hungary of 1944 and in the Jerusalem Court – and dramatic elements. The viewer does not know whether he or she is viewing reality or a figment of the playwright’s imagination.

15. Freedom of speech and of creative expression have therefore produced a sort of hybrid creation, a documentary presenting the truth as it (supposedly) was, as well as drama which is the product of the playwright’s imagination.

16. Until now we have discussed freedom of speech and artistic creation. We shall now proceed to examine a person’s right to his or her good name.

Human Dignity –One’s Right to One’s Good Name

17. A person’s deep, psychological need for a good reputation, a natural yearning, has long been legally recognized. Our nation has been escorted by rabbinic dictums such as “whoever publicly shames his neighbour is deemed to have shed blood” Babylonian Talmud, Tractate Baba Metzia 58b [78]. Similarly, “all who descend into Gehenna reascend, except for three persons who descend and do not reascend... he who publicly shames his neighbour…”Id. [78]. Indeed, “a person’s good name and dignity may be dearer to him or her than any other asset” CA 214/89 Avneri [16] at 856 (Barak, J.) A person’s dignity and reputation are at least as dear to that person as his or her body. Just as a person has a right to bodily integrity, so too is a person entitled to protect his or her dignity and good name. Maligning a person’s dignity and reputation can be likened to rape or an indecent act performed on a person’s body. The difference between both forms of damage is only that, in the case of rape, one first damages the body and only after the soul. In the case of a person’s dignity and reputation, it is the soul that is initially damaged, which may lead to the body being harmed as well.

18.  A person can look to two legal sources for recognition of his or her right to reputation: namely, the Basic Law: Human Dignity and Liberty and the Defamation Law, 1965. We shall discuss the Basic Law at a later juncture. Infra. paras. 28 and 29. For now, we shall turn to the Defamation Law.

19.  The Defamation Law expressly and specifically sets out the rights a person has to his or her good name. The law itself balances between a person’s reputation and his fellow’s freedom of expression. If Chana Szenes were with us today, I do not have the slightest doubt that she would have a claim, under the Defamation Law, against the playwright and against the Broadcasting Authority. As defined in section 1(1) of the Defamation Law, defamation is anything the publication of which may “lower a person in the estimation of others, or make him or her the object of hatred, contempt, or ridicule on their part.” Defamation Law, 1; or a publication which may “bring a person into disrepute because of acts, conduct or qualities attributed to him or her.” Sec. 1(2) of the Law. As such, the statement of Dr. Kastner in the screenplay constitutes defamation. There are those who will claim that it is not for us to pass judgment on one who suffered and, in his pain, revealed such secrets. As our rabbis said: “Do not judge thy neighbour until you are in his place” Mishnah, Ethics of our Fathers, 2:4 [80]. One could even claim that, as such, neither the playwright nor the Broadcasting Authority defamed Chana Szenes. Even having cited the words of our rabbis, however, it would seem that there are few who would dispute that the words uttered by Dr. Kastner constitute defamation.

Were Chana Szenes with us today – seventy-eight years old – she would be able to petition this Court to enjoin the statement attributed to Dr. Kastner. Chana Szenes, however, returned her soul to God in suffering, after being tortured and murdered, on November 7, 1944, at the age of twenty-three. Chana Szenes is no longer with us, and the question is only whether there is another who can file suit to reclaim her dignity. The following people have claimed to represent Chana Szenes’ dignity: In HCJ 6126/94 the petitioners are her brother, Giora Szenes, his two sons Eitan Szenes and Dr. David Szenes, as well as Reuven Dafni, the chairman of Yad Vashem, who, in 1944, parachuted into Yugoslavia with Chana Szenes. In HCJ 6143/94 the petitioners are Ms. Nadia Matar and the Women’s Association for the future of Israel (“Women in Green”).

What is the law regarding the defamation of the dead?

20. It turns out that the law has changed in this matter. Initially, at the time of its enactment, the Defamation Law provided:

Defamation of a          Deceased          Person

5.  Where defamatory matter is published after a person’s death, it shall be treated as the defamation of a living person. The spouse, children, parents, brothers and sisters of the deceased shall be regarded as persons injured by the defamation.

This is to say, defamation of the deceased was the same as defamation of the living, except that the right to file for judicial redress was exclusively reserved to the deceased’s spouse, children, parents, brothers and sisters. Under this law, Chana Szenes’ brother, Giora Szenes, was fully entitled to demand that the disputed paragraph be expunged from the play. This was in contrast to the previous law. See section 6 of the draft proposal for the Defamation Law-1962.

The law, however, was amended in 1967, see Defamation Law (Amended Version), 1967, and the right to file suit for the defamation of a deceased was curtailed. The following is the current language of section 5 of the Defamation Law:

Defamation of a Deceased  Person

5.  Defamatory statements regarding a person that are published after his or her death shall be treated as the defamation of a living person, but do not constitute cause for a civil claim or a private criminal complaint, and no indictment shall be submitted for an offense under this section unless it is requested by the deceased’s spouse or one of his children, grandchildren, parents, brothers or sisters.

This amended Defamation Law contains three principles. The first is that defamatory matter regarding a dead person “does not constitute cause for a civil claim or a private criminal complaint.” The second is that charges may be laid for defamatory statements regarding the deceased, after a request by the deceased’s spouse or one of his children, grandchildren, parents, brothers or sisters. The third principle is that, subject to the first two principles, defamation of the dead shall be treated as defamation of the living. We regard this third principle as constituting the heart of the law: essentially, defamation of the dead is the same as defamation of the living, even though, procedurally speaking, the law imposes restrictions on the ability to seek legal redress, either in a civil claim or in a criminal indictment.

To complete the picture, we will also mention section 25 of the law, which deals with the institution of legal proceedings by one of the deceased’s relatives, within a limited period after the death of the deceased. It also deals with the continuation of defamation proceedings begun by the deceased, if he or she passed away prior to the termination of such proceeding.

21. What does all of the above tell us? We see that defamation of the deceased is subject to the same law as defamation of the living. This is the credo of the law and its message. This is the version of human dignity presented by the Defamation Law. Defamation of the deceased does not constitute grounds for a civil claim or a private criminal complaint, but sealing off the road to the Court does not detract from the substantive prohibition against publishing material defamatory of the dead and does not lessen the statutory moral‑legal condemnation of such defamation.

Defamation of the dead does not provide grounds for a civil claim – a claim for damages, an injunction or a declaratory judgment within the framework of the civil law. However, I am unable to see any good reason why a person should not be able to file suit within the framework of public law, provided that the issue concerns a body or person subject to public law. The Broadcasting Authority is indeed exempt from the yoke of private law with respect to defamation of the dead, as is any other person or body operating within the realm of private law. However, as a body which is also subject to public law, it must be held legally accountable within the parameters of that law.

22. Thus, the Defamation Law does not prevent the petitioners from petitioning the High Court of Justice for a public law remedy against the Broadcasting Authority. Granted, the petition of the brother, Giora Szenes, is not equivalent to the petition filed by the Women in Green. By its very nature, the latter is a public petition, relating to the collective interest. As such, it raises the issue of the public interest regarding the publication of a statement defaming Chana Szenes. In other words, in this petition, the defamation of Chana Szenes does not appear as an independent and exclusive basis for the legal claim, but rather as a component of the public interest in the wider sense of that concept. The public interest includes many other elements besides the protection of a person’s good name, including the freedom of expression and the playwright’s freedom of artistic creation. In this petition, the right to one’s good name must battle all the other components of the public interest. It is only then, if it finds itself victorious in this battle, that the right to a good name can wage its war against the freedom of expression and of artistic creation.

Giora Szenes’ petition, for its part, is different. It is, by its very essence, a private petition, one that raises the interest of the individual. I would go a step further and say that it is an intimate petition. Should we be surprised when a son or daughter comes to protect the honor of his or her mother or father? Does it astonish us when a brother battles for his sister’s dignity, or when a sister fights for her brother’s dignity? Surely, a father and mother would protect their children in the same way. While Giora Szenes refers to his sister as “the soldier-poet who sacrificed her life on the altar of human dignity and liberty,” he makes it equally clear that his petition is focused on the “maligning of the dignity of Chana, of blessed memory, and that of her family,” and that the injury “is further intensified by the series being scheduled on the fiftieth anniversary of her execution.” It is no wonder that, in his affidavit, Giora Szenes speaks of “my sister” and states that, “since becoming aware of the scheduled broadcast, I feel as though my world has fallen apart and that I am powerless.” This is the statement of a brother afflicted.

As such, the petition of Giora Szenes raises the issue of defamation in its purest sense, as a right to reputation standing on its own, as though Chana Szenes herself had petitioned the Court. This is not the nature of the petition of the Women in Green, which seeks to protect the right to a good name as a component of the public interest. Giora Szenes carries the sword of reputation, not the sword of the public interest. It is with this sword that he sets out to battle.

Giora Szenes brings a private claim in the realm of the public law. Chana Szenes is unable to file suit to reclaim her dignity, and her brother does so in her stead. Here, Giora Szenes and Chana Szenes are one and the same. The same applies to the other relatives in section 5 of the Defamation law.

23. A question: are the relatives named in section 5 of the Defamation Law the only ones who possess a “private right” in the public law realm? I would not restrict the right to these relatives exclusively. There are situations in which a friend is like a brother to the deceased and if “spouse” means a husband and wife who are legally married, then it would seem that even those who are not legally married, but who are also a couple, have a private right within the public law realm. However, we need not decide this question, since it is Giora Szenes, Chana Szenes’ brother, who has come to protect the dignity of his sister.

24. A final word: “Defamatory statements regarding a person that are published after his or her death shall be treated as the defamation of a living person.” Does this apply to everyone that has lived since the dawn of mankind? Can one defame Abraham? Moses? Miriam? Yael, the wife of the Keni? Samson? King David? Jeremiah? Judah the Maccabee? Hillel the Elder? Bar-Kochba? Maimonides? Spinoza? Does the defamation of any of these figures confer rights under public law?

It could be argued that the question is whether all of these, our nation’s historical figures, are included in the definition of “person” as provide by the law. It could further be claimed that a distinction must be made between a “person” and a “historical figure.” The law intended to protect a “person” and not a “figure.” All of the above are “figures,” not “persons,” as defined by the law. When then does a person become a “historical figure”? Is Ben Gurion a “figure” or a “person”? The question is far from simple and at this stage we shall be satisfied with the tentative determination that a “person,” within the meaning of the Defamation Law, is someone whose family members, as specified in section 5, bring a claim of defamation. The determination of those entitled to file suit establishes the confines of the right and delineates the border between a “person” and a “figure.”

Another criterion for defining a dead “person,” for the purposes of defamation, is whether there are people alive who knew him or her personally. For as long as there are people living who knew the deceased, he or she continues to live as a “person.” As the poet Chanoch Levin wrote in “When My Eyes Shall Grow Dark,” in his book The Lives of the Dead (1999):

When my eyes shall grow dark

Draw my dead eyes

Towards your open eyes

And welcome my lifeless image into your embrace,

…

…draw my eyes

my dead eyes towards your eyes

there I will live a little longer

I will see through your living, seeing eyes

I will see the world that I cannot see

The world I so loved, and now

It is lost to me, and I am no more,

Only my dead eyes peering through your seeing eyes

In your living eyes, my dead eyes

live a little more, so long

as you will live

I too live, so long

as you will remember,

so long.

In this context we cannot but refer to the wonderful legend of Choni the Circle Maker who was overtaken by slumber and slept for seventy years. When he woke up there was no one that knew him, and he knew no one, as his generation had already passed away. “His resolve was weakened, begged for mercy ‑ and died.” Babylonian Talmud, Tractate Taanit, 23a [81]. And so it is in every generation. “And Joseph died, and all his brethren and all that generation” (Exodus, 1:6 [82]); and immediately following: “Now there arose a new king over Egypt who knew not Joseph.” Id. Thus it was in the days of the prophets: “And Joshua the son of Nun, servant of the Lord died, being an hundred and ten years old ... And also all that generation was gathered to its fathers; and there arose another generation after it which knew not the Lord nor yet the work which He had done for Israel.” Judges 2:8, 2:10 [83].

Needless to say, this question does not arise in the case at bar. Chana Szenes’ brother, her own flesh and blood, stands before us, and demands that his sister’s dignity be restored. These being the circumstances, is it possible or appropriate that we refer to her as a “figure”? There can be no doubt – Chana Szenes is a national heroine, a historical figure. We were educated through her heritage and sang her songs. This is the Chana Szenes of the petition of the Women in Green. However, this is not the case in the private, personal petition of Giora Szenes.

Intermediate Summary

25.  Up to this point we have addressed the freedom of expression and a person’s right to reputation as substantive legal concepts. They are independent principles in their own right, which grant rights to some and obligate others. They also serve as foundations for the interpretation of statutes and case law. They are interpretative principles both in the narrow sense and in the creative sense. However, the examination of the essence of the rights is not sufficient. Given our awareness that these two rights will come into direct conflict, we must further examine their hierarchical status in the legal system and whether one of the two has prevalence over the other in the legal hierarchy, or whether they share the same status in the legal pyramid. Deciding this question is a prior condition for preparing the rights for the struggle in which they are to engage. We will therefore examine the legal hierarchy of the rights, and we will begin with freedom of expression.

Human Dignity – Freedom of Expression’s Hierarchical Status

26.  Until the enactment of the Basic Law: Human Dignity and Liberty, the right to reputation and the right to freedom of expression possessed equal legal status. The right to reputation was already enshrined in statute – in the Defamation Law, as well as in preceding case law. Freedom of expression, in contrast, was exclusively a product of case law. Of course, that case law had the status of law. In other words, with the exception of the internal balancing tests within the parameters of the law itself, all of which defined the scope of freedom of expression, it was an accepted presumption that freedom of expression could only be curtailed or circumscribed by force of Knesset legislation. See e.g., CrimFH 537/95 Ganimat v. State of Israel [24] at 400, and citations there. As with other basic rights, freedom of expression had the status of law. This was so until the enactment of the Basic Law Human Dignity and Liberty. Since the promulgation of the Basic Law, there has been some confusion as to the exact state of the law.

27. The right to freedom of expression was not specifically recognized in the Basic Law: Human Dignity and Liberty, or in any other Basic Law. Even so, there are those who maintain that the concept of human dignity in the Basic Law also includes the freedom of speech, which they see as one of the derivatives of human dignity. According to this view, “Human Dignity” is an overflowing fountain, nourishing all those human rights that may possibly derive from it, or that are implicit therein. One of these basic rights is the right to freedom of expression. On the other hand, there are those who maintain that human dignity is human dignity and in the Basic Law: Human Dignity and Liberty, human dignity does not include freedom of expression. This, they claimed, is particularly true in the case of this specific Basic Law and its legislative history. Between these two extremes there are a number of variations on this theme. See e.g., H. Sommer, Hazchuyot Habilti Minuyot Vihekefa shel Hamahapacha Hachukatit, 28 Mishpatim, 259-61 (1997) [68]; A. Barak, Zchuyot Adam Muganot: Hahekef Vihahagbala, [69], 253; Y. Karp, Mikztat Shielot Al Kvod Haadam lifi Chok Hayesod: Kvod Haadam Vicheruto, [70]; A. Barak, Interpretation in Law [65] at 413. Judges too are occasionally tempted to speculate, in obiter dictum, regarding the nature and scope of the concept of human dignity.

We will not take that path and will not reveal our inner-most thoughts. For our purposes, without ruling upon the matter, we shall agree that freedom of expression is a derivative of human dignity in the Basic Law: Human Dignity and Liberty. We shall therefore presume, without ruling upon the matter, that since the enactment of the Basic Law: Human Dignity and Liberty, freedom of speech has ascended the legal hierarchy and today reigns supreme on the throne of rights set out in the Basic Law: Human Dignity and Liberty.

An Aside

In his opinion, my colleague, the President, distinguishes between the scope of freedom of expression and the protection that the law should grant that expression. That is to say, there are times when a person has freedom of expression even though the law may not extend its protection to him or her. Thus, for instance, a lie will find shelter under the wings of free speech, even if it will not be protected. This statement requires further examination, but, given that there is no need to decide the matter, I have not discussed it.

Human Dignity – The Hierarchical Status of the Right to Reputation

28. Since the enactment of the Basic Law: Human Dignity and Liberty we all know, including those who were previously ignorant, that human dignity is the crown jewel. The concept of “human dignity” is expressly referred to four times in the Basic Law, and once by implication. First, in the law’s title – The Basic Law: Human Dignity and Liberty. Second, section 1(a) of the law provides that “[t]he purpose of this Basic Law is to protect human dignity and liberty.” Third, section 2 of the law provides that “[t]here shall be no violation of the life, body or dignity of any person as such.” Fourth, section 4 of the law establishes that “[a]ll persons are entitled to the protection of their life, body and dignity.” In addition to these, section 1 of the law specifies the “basic principles” according to which “[b]asic human rights in Israel are founded upon recognition of the value of the human being.” The “value of the human being,” as is self-evident, includes human dignity.

And so, one must conclude that human dignity is the fundamental pillar of the Basic Law: Human Dignity and Liberty. Further on in our remarks, we will address the force of a person’s right to dignity. Here we have merely noted its centrality in the system of basic rights.

29. Be the territory covered by “Human Dignity,” as distinct from the freedom of expression, what it may, it is unanimously agreed that human dignity includes a person’s reputation. Human dignity has a number of progeny, but it is clear that one’s good name – or perhaps we should say one’s very name, it being one’s own name – is one’s first-born child. For if human dignity does not include a person’s good name, what then is human dignity? Seeing as how our concern is with human dignity, we need not pursue our search for other basic rights implicit in the concept of human dignity. Furthermore, a person retains his or her dignity both in life and after death. This is the specific stipulation of section 5 of the Defamation Law. Case law further added expressly and definitively that the human dignity in the Basic Law: Human Dignity and Liberty also extends to the dignity of the deceased. See e.g., CA 506/88 Shefer v. State of Israel [50] at 102 {184}; CA 105/92 [10] at 201; CA 1482/92 Hagar v. Hagar [51] at 801; HCJ 294/91 [18] at 523; HCJ 5688/92 [19] at 820, 827-28; FH 3299/93 [20] at 201, 205, 208, 211; HCJ 3933/92 Barachat v. C.O.S. Central Command [52] at 6; A. Barak Interpretation in Law [65] at 437-38; CA 6024/97 Shavit v. Rishon Lezion Jewish Burial Society [53].

A person’s good name has therefore been directly recognized and protected by the Basic Law: Human Dignity and Liberty.

The Hierarchical Status of the Right to Freedom of Expression and the Right to Reputation – A Summary

30. It appears to us, therefore, that both the right to freedom of expression and the right to one’s reputation are protected on two levels. One level is that of the law. With respect to freedom of expression, we are dealing with case law that has the status of statutory law. The higher level is that of the Basic Law: Human Dignity and Liberty. Chana Szenes, too, has the right to her good name – some will say the right of the living to maintain the good name of Chana Szenes. This right, as well as the freedom of expression of the playwright and the Broadcasting Authority, enjoys the status of basic rights, or supreme rights. It is these two supreme rights that are locked in a duel. Which of them will prevail?

We cannot decide between the two rights on the basis of their fundamental essence. They are both deeply rooted rights – rights without which our democratic society could not survive. Nor can we decide between them according to their hierarchical status in the legal system, for both are of royal stature. We must therefore search for an appropriate criterion for deciding between the rival rights. Such a criterion can be found by a deeper examination of the essence of the rights. We will not refer to each of the rights purely as principles, or by reference to their respective proximity to the apex of the pyramid of rights. Instead, by way of metaphor, we will use a geiger-meter, to measure the internal power of each of the rights claiming supremacy. We will measure the internal power of the right to freedom of expression of the playwright and the Broadcasting Authority and we will then measure the internal power of Chana Szenes’ right to her good name, as it is carried on the petitioners’ shoulders. Finally we will compare their respective powers. The right which has more power, its internal light shining brighter, is the right which will prevail in the case before us.

We will now examine the internal power of each of the rights before us.

The Right to Freedom of Expression and the Right to a Good Name

31. We will begin with freedom of expression and artistic creation. As we saw, we cannot be satisfied with the examination of the right of freedom of expression in the general sense. It is incumbent upon us to further examine that particular thread of freedom of expression presenting itself before us. Its internal power must be evaluated in order to assess its strength in the confrontation with other basic rights that it attempts to curtail.

32. In fact, we already examined the aspects of freedom of expression relevant for our purposes. We found that we are dealing with part fiction and part drama. As indicated by its name, it is a “docudrama.” To the extent that the dramatic element is involved, we have no quarrel with either the playwright or the Broadcasting Authority. Furthermore, even if, for dramatic effect, the playwright occasionally diverges from the truth, we would not take issue with the matter. The dramatic element of the play is the life-breath of the docudrama’s author. It forms that creation’s soul and we would dare not damage it.

This is not the case with the other element, that of the chronicle. Indeed, here too we will not be overly meticulous, nor can we be, for the author is a playwright, not a historian. Thus, for example, regarding the crossing of the border from Yugoslavia to Hungary: Chana Szenes crossed the border on the night between the 9th and 10th of June in 1944 and was caught after two hours. Yoel Palgi and Peretz Goldstein crossed the border two weeks later, on June 23rd. Chana did not know when they were to cross the border, and the two of them crossed the border about 100 kilometers away from where Chana herself crossed the border (see the affidavit of Reuven Dafni, who, as their leader, was responsible for the group of paratroopers in Yugoslavia). Diverging from this fact, Yoel Palgi in the play says – as does the playwright in his interview with Yediot Aharonot, supra para. 7 – that he crossed the border three days after Chana Szenes. By distorting their respective dates of crossing the border, reducing the period between crossings from two weeks to three days, the playwright sows the seeds that give rise to Kastner’s accusation that Chana betrayed both Palgi and Goldstein to the Nazis. The proximity of the dates could indicate that Chana knew the date when Palgi and Goldstein would arrive. Had this been the total extent of the divergence from the truth, no one would have criticized the playwright. The same applies to other similar divergences. However the divergence in the case before us is different. For it is not only a divergence from the truth; while diverging from the truth it viciously damages a person’s good name.

33. Freedom of expression regarding actions or events that occurred is of the highest importance. The freedom and right to report events and actions, especially events and actions about which the public must know, is not just a right. When speaking of the media, the right goes hand in hand with the obligation. There is a public duty on those reporting, to report that which should be reported. It is for this reason that the reporter has the defense of “truth of publication” under section 14 of the Defamation Law. I dwelt at length upon the defense of truth in my opinion in the Krauss [48] and will not deal with it here (In that decision, my opinion was the minority view, but not with respect to the defense of truth).

The freedom of expression with regard to the publication of a chronicle, as well as the defense of truth, also subject the reporter to a special duty to restrict himself or herself to the truth and not to report untruths – even if unintentionally and unwittingly. Certainly this is the case when the reporter knowingly or recklessly reports untruths. In any event, even if we say that the freedom of expression includes falsehood – and we express no opinion on this point – I am at a loss to understand why the law should protect falsehood with the same protection granted to freedom of expression. I cannot see what the protected interest is. Just as my right to lift my hands on either side terminates when I reach another person’s nose, so too, the freedom of expression terminates upon encountering a person’s good name. One way or another, regarding a false report, I find no interest capable of supporting the right to freedom of expression in its battle with another person’s right to his good name.

All of this relates to the power of the rights of the playwright and the Broadcasting Authority to freedom of expression and artistic creation.

34. With respect to Chana Szenes’ right to dignity and her good name, as they are borne on the petitioners’ shoulders, I find it difficult to find a more noble right. Regarding human dignity, I said the following in Krauss [48] at 74:

With respect to human dignity, truth be told, we will find it exceedingly difficult to distinguish between a person and his or her dignity. A person and his or her dignity enter this world intertwined. One is one’s dignity, and one’s dignity is oneself. “A person and his or her dignity emerged together from the mother’s womb, and the two become one. A person is his or her dignity, and that dignity is the person.” CA 3077/90 A. v. B. at 592. One who lost one’s dignity is merely the shell of a person, if you will: the shadow of a person.

Thus, a person and his or her dignity are identical, and a person without dignity is but nothing more than the shell of a person. To quote the sublime words of Shakespeare in Richard the Second:

The Purest Treasure mortal times afford

Is spotless reputation; that away,

Men are but gilded loam or painted clay.

…

Mine honour is my life, both grow in one,

Take honour from me and my life is done”

See William Shakespeare, Richard II, act I, sc. I.

In our own sources, human dignity is reserved a place of honor in the Temple of basic rights. The reason, we are taught, is that man was created in God’s image: “So God created man in His own image, in the image of God created He him.” Genesis 1:27 [84]. And Rabbi Akiva taught us “Beloved is man, who was created in the image of God.” Mishnah, Ethics of our Fathers 3:14 [85] To this the Court added, in Krauss [48] at 75:

Those who are believers and observe the commandments derive the dignity of man from the honor of The Holy One, Blessed be He. In so doing, they elevate human dignity to supreme heights. And what will those say who do not believe and who do not observe? They will say: why should we anchor our recognition of the noble value of human dignity in God? Isn’t a person qua person sufficient reason for protecting one’s dignity? For a person is his or her dignity, and that dignity is the person. Nor can we forget the Basic Law: Human Dignity and Liberty, the basic law that engraved human dignity both in its name and content, establishing it in the Israeli legal system.

From all of the above, we know that the power emanating from Chana Szenes’ right to dignity is unparalleled. Regarding Chana Szenes, we can further say that her dignity and good name are larger than life itself, for as much as she was tortured, until she was murdered, she did not divulge her secret. To be precise, our concern is with Chana Szenes’ refined and pure right to her dignity and reputation, both of these having been carried by Giora Szenes from the battlefield and presented to us.

35. Chana Szenes’ right to dignity and reputation are laid before us in all their grandeur. We no longer need to examine the claims of the “Women in Green,” who present Chana Szenes’ interest as part of the public interest. The private, immediate interest of the brother Giora is sufficient, and we need not discuss the collective interest of the Women in Green. Nonetheless, it bears mentioning that all of the judgments cited by my colleague, the President, in support of his opinion, deal with freedom of expression conflicting with the collective interest and not with freedom of expression conflicting with an individual interest. In referring to an individual interest our intention is to a particular person cited by name and description. The only exception is the ruling in Avneri [16] with regard to which we have two comments. First, the issue there concerned a temporary injunction, in circumstances that were not entirely clear. Second, in any event, the rule established in that case warrants renewed examination for since then the Basic Law: Human Dignity and Liberty has been enacted. My colleague, the President, also agrees with this. In his own words in Ganimat supra [49] at 418:

The new status for the right to a good name, part of the right to human dignity, may justify a renewed examination of the exercise of judicial discretion in granting temporary injunctions against publications which are allegedly defamatory.

Compare CA 214/89 Avneri v. Shapira. See also A. Bendor, Chofesh Lishhon-Hara, 20 Mishpatim 561 (1990-1991) [71].

36. Here we must add and understand the need to peel off the label of “freedom of expression” from the group of interests to which it attaches, and to further examine the nature and texture of the particular component of the specific interest. Having peeled off the label, we now know that even if we state that human dignity encompasses freedom of expression – and we take no position either way on the matter – the dignity of Motty Lerner confronts the dignity of Chana Szenes. This being the case, we can further ask: could anyone dare to claim that Motty Lerner’s dignity prevails over that of Chana Szenes? Motty Lerner’s dignity is indeed dignity and he is worthy of it, but we will not agree to his dignity being constructed over that of Chana Szenes, or to his dignity dismissing the dignity of Chana Szenes. As the verse says: “for them that honor me, I will honor.” I Samuel, 2:30 [86].

37. The results of the confrontation between the rights are clear. Our concern is not with rights of equal standing. We are dealing with a right of dimensions struggling against a smaller right. The dignity and reputation of Chana easily prevail over the rights of the playwright and the Broadcasting Authority.

In HCJ 1/81 supra [39] at 378, Justice Shamgar wrote:

In order for this Court to prohibit an individual, responsible for public broadcasting and advertising, from publishing a particular broadcast, there must exist extreme circumstances, posing a tangible and near certain danger to the public welfare at large… or a clear and obvious illegality (emphasis added).

In the paragraph that the petitioners requested be deleted, there is a “clear and obvious illegality.”

Epilogue

38. Soon after turning twenty-three, Chana Szenes returned her soul, in all its purity, to God. Chana Szenes cannot come to claim her dignity. It is incumbent upon us to restore her dignity to her. In CA 1182/90 Shacham v. Rothman [54] at 347, the Court decided to honor a person’s wishes expressed in his will, and I concluded my opinion there with the following words:

I am happy with the result that I have reached, which in my opinion is the fulfillment of the deceased’s wishes. A person’s will is his or her dignity; it is human dignity. But the dead are unable to realize their wishes and preserve their dignity. We have therefore acted for the fulfillment of the deceased’s wish and the preservation of the deceased’s dignity.

Chana Szenes was a soldier-poet, or perhaps we could say poet‑soldier. She was a poet, a soldier, and a dreamer. Chana loved life. And when Chana wandered barefoot on the golden sands of Caesarea, a young girl, twenty years old, she prayed to God:

O Lord, my God

I pray that these never end

the sand and the sea,

the rush of the water,

the flash of the heaven,

the prayer of man.

In those days that were blacker than black, redder than blood, before she entered the inferno, Chana sang of the rebellion, of death and dignity. This was Chana’s song in Serditza, Yugoslavia:

Happy…

Happy is the match that burnt and ignited the flames

Happy is the flame that burnt in the recesses of hearts

Happy are the hearts that knew to extinguish in dignity…

Happy is the match that burnt and ignited flames.

Chana Szenes’ heart knew how to extinguish in dignity. Whether by words or by action, the dignity and good name of Chana Szenes cannot be taken away.

Chana Szenes

11 Tammuz 5781 – 28 Cheshvan 5805

July 17, 1921 – November 7, 1944

******

The case was decided in accordance with the majority opinion, as per the opinion of President A. Barak, with Justice Mazza concurring and against the dissenting opinion of Justice M. Cheshin.

July 26th, 1999.

 

 

Crim.A. 70/64

 

           

ARMAND STROUL

v.

ATTORNEY-GENERAL

 

 

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

[June 22, 1964]

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

 

 

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

 

 

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

 

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

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

 

Israel cases referred to:

 

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

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

 

 English cases referred to:

 

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

 

S. Toussia-Cohen for the appellant.

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

 

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

 

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

           

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

 

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

 

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

 

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

 

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

 

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

 

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

           

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

           

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

...

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

 

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

 

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

           

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

           

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

           

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

           

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

 

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

           

            I would dismiss the appeal against conviction.

           

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

           

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

 

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

 

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

           

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

           

            The appeal against sentence is also to be dismissed.

           

OLSHAN P.               I concur.

 

LANDAU J.               I concur.

 

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

 

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

           

            Appeal dismissed

            Judgment given on June 22, 1964

C.A. 358/63

C.A. 362/63

 

State of Israel

v.

Joseph Schwarz and others

 C.A. 358/63

 

Josheph Schwarz

v.

State of Israel and others

C.A. 362/63

 

 

The Supreme Court sitting as a Court of Civil Appeal.

[December 31, 1963]

Before Agranat D.P., Witkon J. and Manny J.

 

 

Tort - vicarious liability of State for acts of assault by its servants - ratification - Civil Wrongs (Liability of the State) Law, 2952, sec. 2.

 

 

Joseph Schwarz sued the State. the Governor of Shatta Prison and several warders for damages for injuries he had sustained from blows whilst under arrest and in prison. Against the State he claimed vicarious liability. In the District Court he was successful on the ground that the acts perpetrated were done by an organ of the State and impliedly with its permission. The State appealed.

 

HELD The State, like every other corporate body, may become vicariously liable in tort for the acts of its servants done in the course of their duties. It may also become liable by express authorization or ratification of acts not coming within such duties.

 

Israel case referred to:

 

(1)        C.A. 176/62 - Ben-Zion Lev and Baruch Bloshinski v, Zahava Tordzman and others (1962) 16 P.D. 2625.

 

English cases referred to:

 

(2)        William Ranger v. Great Western Railway Co. (1854) 10 E.R. 824.

(3)        Lennard's Carrying Co. Ltd.v. Asiatic Petroleum Co. Ltd. (1915) A.C. 705.

 

Mrs. H. Evnor for the appellants in C.A. 358/63.

E. Haetzni for the appellant in C.A. 362/63.

 

 

 Manny J.:       Joseph Schwarz (hereinafter called "the plaintiff") took action in the Tel Aviv District Court, against the state of Israel, the Governor of Shatta Prison and three of its warders claiming a sum of IL. 54,000 for bodily injuries he had sustained from blows by three Israeli police detectives when arrested on suspicion of having committed a crime, and by three of the defendant warders whilst in Shata Prison.

 

Paragraph 2 of the Statement of Claim reads:

 

            "The (State of Israel) is sued for the actions of the following persons

           

(a) the Israel Police, Tel-Aviv District, Central Branch for Surveillance and Detection, three officers of which struck the plaintiff;

 

(b) the Prison Service, Shatta Prison, several members of whose staff struck the plaintiff twice and, together with (the Governor of Shasta Prison) and others, prevented or delayed treatment after he was badly injured."

 

Paragraph 29 of the Statement of Claim claims:

 

"(State of Israel) is liable to pay the sum (claimed) for vicarious liability, since the defendants 2 - 5 are policemen or warders in the State Service and/or (the State of Israel) is their employer. The actions or omissions of defendants 2 - 5, the subject of this action, were effected in the course and within the confines of their service and/or work for (the State of Israel)."

 

            The plaintiff applied by motion for leave to amend the Statement of Claim in two respects:

           

(1)        The addition of the following paragraph:

 

"29a: Further and/or alternatively (the State of Israel) is liable for the injurious acts, the subject of the action, by reason of tortious negligence. Its negligence manifested itself in failing to take sufficient care, and/or not maintaining sufficient disciplinary control over its officers and subordinates (including those responsible for the imposition of discipline) and/or in not taking suitable measures of control over its officers and other subordinates (including those whose task is to exercise control over lower grades) and/or in not suitably supervising its various officers and subordinates (including those whose task is to supervise lower ranks), and/or in not adopting suitable instructive and explanatory methods and/or in appointing officers, commanders, policemen and warders (and senior grades of command in general) who are not suitable to their tasks and/or in leaving such unsuitable functionaries in their posts despite their unsuitability and/or in committing acts or omissions (through its various functionaries, from the Minister of Police and below) which tended to encourage, and in any event did not deter the actions which caused the injuries, the subject of this action."

 

(2)        The addition of the following paragraph to paragraph 29 of the Statement of Claim:

 

"(The State of Israel) expressly authorised the acts of the other defendants before, and alternatively after, the acts, the subject of the action.

 

Such subsequent authorisation was given by a series of acts and omissions by (the State of Israel) which constituted express ratification of the following acts (here appears a long description of the acts and omissions which according to plaintiff's counsel constitute such express ratification)."

 

            The District Court gave the plaintiff leave to amend paragraph 29 of the Statement of Claim "to the extent that he intends to show that the State expressly authorised the actions of the other defendants, before the acts, the subject of the claim", but refused to permit the other amendments.

           

            In allowing these amendments, the court added:

           

"Indeed, it is true to say that this also seems to me superfluous, because I see the State's liability for the beatings during arrest as its act, since the assault was done by people who are regarded as an organ of the State or, in other words, what they did is an act which according to written law, they must carry out with State permission." In the course of his decision the court develops a theory on which to base the above ruling.

 

            Against this decision the State of Israel as well as the plaintiff appealed.

           

            The State asks for the following:

           

(a)   annulment of that part of the court's decision which lays down that an act of assault committed by a warder or State employee, is an act of the State itself, and

 

(b)   in so far as the court's decision is understood to mean that the plaintiff will be permitted to rely on the acts and omissions specified by him for founding the plea of ratification in order also to prove express prior authorisation, a finding that the plaintiff is not entitled to do so.

 

            Let me say at once in relation to this ground of appeal that from reading the District Court's decision and the plaintiff's application for amending the Statement of Claim, no such interpretation arises. From the second particular of the plaintiff's application it clearly seems that the use the plaintiff wants to make of the series of acts and omissions detailed in the application, is merely to create a basis for the plea of "ex post facto authorisation", "the ratification", and the court's decision itself leaves no room for drawing the conclusion that the court indeed allowed use of this series of the acts and omissions in order to prove the plea of express preceding authorisation. I do not think therefore that there is any foundation whatsoever for this ground of appeal.

           

            As to that part of the court's decision in which it lays down and develops the idea that the acts of assault should be regarded as acts of the State because they were committed by people who carry out the duties of a policeman or warder, it seems to me that this idea is basically erroneous since there is no authority for it neither in law or even in the cases.

           

            Section 2 of the Civil Wrongs (Liability of the State) Law, 1952, expressly provides that:

           

"For the purposes of civil liability, the State shall, save as hereinafter provided, be regarded as a corporate body."

 

            It is notorious that a corporate body can act and bear responsibility only through its agents and employees. The liability of such a body for civil wrongs committed by its agents or employees in the course of their work is therefore vicarious liability:

           

Pollock on Torts, 15th ed., p. 51;

Salmond on Torts, 13th ed., pp. 70, 71;

Halsbury-Simonds, Vol. 37, p. 133;

Palmer's Company Law, 20th ed., p. 131;

James, General Principles of the Law of Torts, 1959, p. 34;

Ranger v. Great Western Railway Co. (1854) 10 E.R. 824, 830.

 

            As distinct from such vicarious liability, an incorporated body can also be liable under the well-known principle that whoever authorises or ratifies the commission of a civil wrong by another person is liable as though he himself committed it. (Section II(1) (a) of the Civil Wrongs Ordinance, 1944). But for that, it is necessary that the authorisation or ratification be given by the highest controlling authority of the corporate body or by somebody else to whom the general powers of the corporate body have been transferred. (Salmond on Torts, 13th ed., pp. 70 - 73; Lennard's Carrying Co. v. Asiatic Petroleum (3)) In addition, in the event that the civil wrong is assault, the authorisation or ratification needs to be express (Section 26 of the Civil Wrongs Ordinance).

           

            In applying these rules to the State, it seems to me:

           

(a) that a person who fulfils the function of a policeman or warder in the State, is only an employee or agent of the State and the relations created beween it and them are employer/employee relations, and the State's liability for their acts and omissions is vicarious liability;

 

(b) that the body corresponding to the highest governing authority in a corporate body is the Government.

 

            Hence, in order to impose on the State direct liability for the assaults committed by the policemen and warders, the plaintiff must prove that the Government or someone else to whom it transferred its powers in this matter, expressly authorised or expressly ratified those acts of assault.

           

            And indeed in the application to amend the Statement of Claim, the plaintiff petitioned the court that he should be permitted to amend paragraph 29 by adding the cause of action that "the State of Israel expressly authorised the defendants' actions before ... the acts", and the court granted the application. But it seems to me that the court made a mistake in so doing.

           

            Amendment of a Statement of Claim is not a routine matter allowed anyone who applies for it, but in every case lies in the discretion of the court. When the amendment applied for is the addition of a new cause of action to the Statement of Claim, that cause of action must be pleaded before the court can exercise its discretion.

           

            In the present case, the cause of action was pleaded very vaguely and it was seriously defective; it did not set out how express authorisation was given; it did not set out when and by whom it was given; and thus we know nothing from its wording and contents.

           

            For these reasons, I think, the court erred in the exercise of its discretion and leave should not have been given at all.

           

            The District Court tries to find express authorisation for the acts of assault in regulation 128 of the Prison Regulation, which forbids an officer to hit a prisoner unless forced to do so in self-defence or to prevent his escape. I quote from the court's decision:

           

"Warders and policemen are expressly empowered by the Regulations to apply force, as stated in Section 24 of the Civil Wrongs Ordinance. The only justification is defence, and the State therefore is liable for the assault it expressly authorised, even if the assaulter did not abide by what is provided in the Prison Regulations."

 

            It seems to me that this claim is also mistaken. The authorisation given by regulation 128 above is limited to those cases mentioned in the regulation, and it does not extend to intentional and unjustifiable acts of assault. In order to impose liability on the State for the latter, the plaintiff must prove that there was express authorisation or express ratification for those acts of assault: Lev v. Tordzman (1), and implicit authorisation or ratification would not help him.

           

            For these reasons, I am of the opinion therefore that that part of the District Court's decision should be annulled, in which it determines and reasons that the policemen's or warders' acts of assault are acts of the State itself, and so also the amendment to paragraph 29 of the Statement of Claim that it permitted.

           

            The plaintiff's appeal is against the court's refusal to permit use of acts and omissions detailed in the application for proving "implicit ex post facto authorisation of the acts of assault" and the addition of paragraph 29a to the Statement of Claim.

           

            As to the first complaint, I went into all those acts and omissions which the plaintiff sets out in his application and I could not discover in them any express authorisation for the acts of assault. Therefore, the District Court was correct in refusing to allow their inclusion in the Statement of Claim.

           

            As to the amendment of the Statement of Claim by the addition of paragraph 29a, it seems to me that the District Court was not right in rejecting the application. The cause of action in paragraph 29a is based on negligence. It is absolutely different and separate from the cause of action of assault and its elements are also totally different from the cause of action of assault. In certain cases a duty rests on an employer to see that his employees are competent and suitable. This rule possibly applies also to people employed in the police and prison services, and therefore, prima facie, there was no room for rejecting the plaintiff's application to include that paragraph in the Statement of Claim.

           

            For the said reasons I am therefore of the opinion that we must:

           

(l)    uphold the State's appeal in part, in the sense that that part of the District Court's decision (extending to the end of the decision) is to be set aside in which it holds that the acts of assault can be regarded as acts of the State; and also the amendment which it permitted to paragraph 29 of the Statement of Claim;

 

(2)   uphold the plaintiff's appeal in part, in the sense that the amendment of the Statement of Claim by the inclusion of paragraph 29a should be permitted;

 

3. subject to what was said in (a) and (b) above, to dismiss to State's appeal and the plaintiff's appeal without an order for costs.

 

AGRANAT D.P.:                   I concur.

 

WITKON J.:                           I concur.

 

Appeals allowed in part and dismissed in part.

Judgment given on December 31, 1963.

 

 

 

 

 

 

 

 

 

 

Appeal allowed.

29 Shevat 5766.

27 February 2006.

C.A. 7/ 64

 

       

FRIEDA SHOR

v.

STATE OF ISRAEL AND ANOTHER

 

 

In the Supreme Court sitting as a Court of Civil Appeal

[June 21, 1964]

Before Silberg J., Witkon J. and Halevi J.

 

 

 

Torts - vicarious liability - res judicata.

 

 

                In April 1957, the appellant sued a police sergeant for damages for physical injuries he had caused her. That action was dismissed at first instance on the ground of lack of evidence, and the Court of Appeal refused to interfere with this decision. The appellant then began an action against the respondents as the employers of the sergeant, claiming vicarious liability, in respect of the same alleged injuries. An application by the respondents to dismiss the action in limine as res judicata was granted: hence this appeal.

               

Held. (1) The rule that a judgment as between A and B will not be res judicata as between A and C is subject to an exception that where B was an employee directly responsible for the tortious act and C was vicariously liable therefor.

 

(2) The fact that an employee is held liable in tort will not bar the employer from denying that liability, if the latter was not party to the first trial, whereas if the employee is found to be free of liability. that will enure to the benefit of the employer even if not a party. The reason is that the employee's direct liability is the basis for the derivative liability of the employer and not the reverse. Accordingly the two claims are identical although the parties differ. If there is no direct liability on the part of the employee, there can be no derivative (vicarious) liability on the part of the employer.

 

 

Israel cases referred to:

 

(1)        C.A. 126/51, Shlomo Felman v Yachieh Shahav (1952) 6 P.D. 313.

(2)   C.A. 143/51, 55/52, Mayor, Members of the Council and Residents of Ramat Gan and Others v Pardess Yanai Co. Pty. Ltd. (1956) 10 P.D. 1804.

3. C.A. 49/63, Abraham Zucker v Yeshayahu Leibovitz (1964) 18 P.D. (1) 337.          
4. C.A. 155/50, 159/50, David Rahamim Mizrahi v Yaacov Rahamim (1951) 5P.D. 540
5. C.A. 534/59, Escher Cohen v Naomi Cohen (1960) 14 P.D. 1415.

(6)   C.A. 395/60, Roma Amrani v Attorney-General and National Insurance Institution (1961) 15 P.D. 594.

(7)        C.A 286/62, Shlomo Ma'aravi v Shlomo and Regina Eltars (1963) 17 P.D. 1350.

 

American cases referred to:

 

(8)        Portland Gold Mining Co. v Stratton's Independence, 158 F. 63 (1907).

(9)   Albert S. Bigelow v Old Dominion Copper Mining & Smelting Co., 225 U.S. 111 (1912).

(10) Prichard v Nelson et al., 55 F. Sup. 506 (1942).

(11) King v Stuart Motor Co., 52 F. Sup. 727 (1943).

(12) Weekly v Pennsylvania Rly. Co., 104 F. Sup. 899 (1952).

 

The petitioner appeared in person.

 

Dr. M. Eltes, Deputy State Attorney and Mrs. P. Albeck, Principal Assistant to the State Attorney for the respondents.

 

SILBERG J.               The only question before us in this appeal is whether the judgment given by the Jerusalem District Court in C.C. 61/57 constitutes res juditaca regarding the action commenced by the present appellant in C.C. 211/63.

 

2. The few necessary material facts are:

 

(a) In April 1957 the plaintiff filed a claim against Mr. Shmuel Steinfeld, a police sergeant, for the sum of approximately IL 3,200 as tort damages for bodily injury.

 

(b) The District Court dismissed the claim, holding that the appellant had not proved her claim. The court said per Judge Gollan the following:

 

"The court which heard the plaintiff testify is not of the opinion that the plaintiff is a liar. A liar is a person who presents facts which do not exist in reality according to the best of his knowledge and who knowingly gives other details of the fact and intentionally changes it, in order to mislead the listener. The court is not of the opinion that the plaintiff belongs to that type of person. But, in the light of the evidence of Dr. Baumatz and Dr. Schlossberg, and of the plaintiff herself, on appearing in court both as plaintiff and as witness and her behaviour, the court is of the opinion that it would not be justifiable to rely on her testimony alone to find against the defendant in this case. Although the court received the impression that the defendant's denial that he touched the plaintiff in any way is exaggerated, we have insufficient proof in law of the fact that it was the defendant who caused the plaintiff to break her arm and of the damage which she claims from him."

 

(c) The appellant appealed against judgment to the Supreme Court in C.A. 35/58 (unpublished) and her appeal was dismissed. The Court said:

 

"We do not think that we can as appeal judges interfere with the learned judge's assessment of the appellant's testimony, based as it is, at least partially, on the impression that she made in the witness box. It follows that the principal proof falls away and therefore her claim has to fail, as the judge decided."

 

(d) Afterwards the appellant submitted a new claim in C.C. 211/63 in the Jerusalem District Court for the same injurious act, but this time the defendants were the State of Israel and the Inspector-General of Police, the cause of action was the vicarious liability of the employers of Sergeant Steinfeld, and the amount claimed was IL 30,000. The defendants applied by way of motion, asking for the claim to be struck out in limine under rule 21a of the Civil Procedure Rules, 1938, on the ground that the judgment mentioned in (a) above constitutes res judicata in respect of the second claim. The court accepted the argument and struck out the claim in limine, and against that the appellant now appeals.

 

3. The arguments of the appellant are principally two:

 

(a) The learned judge disregarded the rule decided in Felman v. Shahav (1), which she claims, is that any judgment which does not determine a positive finding, does not constitute res judicata in respect of a new claim. All which the court decided there in File 61/51 was that the appellant had not proved her claim, that is to say, it "found" that it could not make "a finding", and obviously there is nothing here to constitute res judicata.

 

(b) The judgment which was given in the previous case does not constitute res judicata in respect of the second claim, since the parties in the first case are not identical with those in the second, hence the application in the new case has not yet been decided.

 

4. As to the first argument, the learned appellant erred and did not really understand what was said in Felman (1). There the Supreme Court distinguished between a plea of real res judicata based on article 1837 of the Mejelle, and a plea of "estoppel by matter of record" based on the Common Law. When a defendant in the second case relies on the fact that the same question has already been dealt with and decided in the previous case between the same parties and pleads the Common Law estoppel, the plea will not be heard unless the determination of the question ended with a positive finding and not in "I did not find anything". But when the plea is that a real decision has already been given on the same application, now brought once again in the second case, then there is no practical difference at all whether the application was previously dismissed because of a positive finding of the judge, or whether it was dismissed because it was not proven. Article 1837 of the Mejelle does not recognise this distinction. The outcome, therefore, is that the principal question before us is the accuracy or inaccuracy of the second argument of the appellant. For should we hold the two claims identical, that will obviously serve as a complete answer, to the first argument as well.

 

5. And as to the second argument, it is true that the rule is that no judgment given in a case between A and B constitutes res judicata in respect of a claim between A and C. But "one cannot learn anything from generalities", because there is no rule which does not have its exception (other, perhaps, than this rule itself). And the exception to the above rule is when B was an employee directly responsible for the injurious act, and C is vicariously liable for that act. Here the law is as follows: if B is found liable, the judgment is not res judicata in respect also of C, but if he is not found liable, then the non-liability also constitutes res judicata in respect of a subsequent claim made against C, the employer. Preliminary support for that is found in the judgment of Sussman J. in Ramat Gan v. Pardes Yanai (2) at 1813, which was cited by the learned District Court judge and which reads as follows:

 

"When we say that the above rule of 'reciprocity' directs us to reject the plea of res judicata, it did not escape us that sometimes a party can enjoy the fruits of a previous case, and if the opposite were decided, then the judgment would not concern him. What is involved are cases in which a person's liability is only derived from that of another, such as the responsibility of an employer for the act of his employee. The employee's liability in a claim for damages will not prevent the employer from denying the responsibility of the employee, where the employer was not a party in the first case, whilst exoneration of the employee in the case will also clear the employer from liability, even if he was not a party."

 

            The ratio of this exception is patent. The direct responsibility of the employee is the basic foundation of the derivative responsibility of the employer: without an agent there is no principal. Hence there exists here identity between the two claims, although the names of the parties differ.

           

            But why does the idea not operate equally when the employee is found liable in the first case: The answer is, in my opinion, practical and simple. If the employer is made liable, without any new judgment, on the basis of the employee's liability as found in the previous judgment, the door will be opened to collusion and fraud. The employee will connive with the injured plaintiff, be found liable and divide with the plaintiff the spoil obtained from the claim against the employer. This apprehension naturally does not exist when the employee is not found liable. Thus we return to the basic idea, that when the ground gives way (the claim against the employee) the supercumbent building also collapses (the claim against the employer).

           

            This special exception was recently confirmed by Sussman J., Landau J. and Halevi J. in Zucker v. Leibovitz (3). It has also been adopted in American case law, where in a series of decisions it has been held that the general principle that a person cannot take advantage of a judgment by way of estoppel unless he would be involved in the judgment, if the opposite had occurred, but subject to several exceptions, one of which is that in claims for damages, when the defendant's responsibility necessarily depends on the guilt of another who is the immediate tortfeasor, and in the previous claim against the latter for the same act, it was held that he is not guilty, then the defendant can derive benefit from that judgment as estoppel. although he would not have been involved, if the opposite had occurred: Portland Gold Mining Co. v. Stratton's Independence (8).

 

The Portland case, which was mentioned also in the above judgment of Sussman J., is the first case which summarises the law current in earlier American cases and was followed in later cases: Bigelow v. Old Dominion Copper Co. (9), cited in Prichard v. Nelson (10) at 510; cf. King v. Stuart Motor Co. (11) at 729-30; Weekly v. Pennsylvania R. Co. (12) at 900.

...

"If a defendant's responsibility is necessarily dependent upon the culpability of another, who was the immediate actor, and who, in an action against him by the same plaintiff for the same act, has been adjudged not culpable, the defendant may have the benefit of that judgment as an estoppel."

 

(30A Am. Jur., Judgments, para. 425; 52 Am. Jur., Torts, para. 129; cf. 50 C.J. Sec., para. 757, at p. 279.)

 

            I have restricted myself to the question which directly concerns the case before us. whether a judgment exonerating the employee serves as res judicata in an action against the employer; I have not touched upon other aspects of the question, such as how a condemnatory judgment is treated and how the concept of res judicata works between joint tortfeasors; the latter question was dealt with extensively by Halevi J. in Zucker (3). In English case law, to the best of my knowledge, there is no express decision regarding the question arising before us, although there is case law on the relationship of res judicata between joint tortfeasors.

           

            I have seen no need to enter into the remaining submissions of the appellant because they are without substance.

           

            In my opinion therefore the appeal is to be dismissed without costs.

           

HALEVI J..                In Zucker (3), we held in an "opposite" case (where the employer was first sued for vicarious liability for the wrongful act alleged against his employee and the plaintiff failed to prove the wrongful act) that the plaintiff was free to sue the employee for committing the act and to try and prove it, and the judgment given in favour of the employer does not constitute res judicata as regards the employee which bars the action against him. In the present case. however, in which the employee was first sued for a wrongful act attributed to him by the plaintiff (the appellant) and she failed to prove the act, we rule that the appellant is not at liberty to sue the employers (the respondents) for vicarious liability, and that the judgment in favour of the employee constitutes res judicata which bars the action against them. What is the reason for the difference in law between this case and its opposite?

 

            The reason is that the vicarious liability of the employer springs from the employee's liability, and the employee's liability does not spring from the employer's liability. This substantial difference has two consequences:

           

(a) American jurists and courts are united in the view that a judgment which, on the merits of the case, exonerates a person from a wrongful act attributed to him by the plaintiff, bars an action of the same plaintiff against another person, which is based exclusively on the vicarious liability of the second defendant for the wrongful act, for which the first defendant was acquitted. Although had the first defendant been held liable, the judgment would not be evidence, and needless to say res judicata, against the second defendant, because the judgment would be res inter alios acta and "one cannot render a person liable except in his presence". An act may, however, be done in favour of a person even when he is not present (Baba Metzia, 12b), and therefore the reciprocity rule may be departed from for reasons of "public order": interest rei publicae ut sit finis litium. The plaintiff has had his "day in court", and not having proved the wrong in his action against the direct actor, he is not to be permitted to try his luck again in an action against the person vicariously liable. Added to these principal considerations, there is the further consideration in most cases that it would not be justified to expose the first defendant. already exonerated in the plaintiff's claim, to a claim for indemnity on the part of the second defendant. in the event of the latter being condemned to pay damages to the plaintiff for the same wrongful act, of which the first defendant was cleared. For all of these reasons, we regard the rule, that a judgment which exculpates the immediate actor from a wrongful act, is res judicata for the person vicariously liable. a reasonable and just development of the Common law and we in fact adopt it.

 

            As to the "opposite" question. whether a judgment in favour of the person vicariously liable is also res judicata for the immediate actor, lawyers and the courts in the United States have not yet reached an unanimous view. At least one of the aforementioned considerations - exposing the first successful defendant to a claim for indemnity by the second defendant - does not generally apply to the "opposite" case. In Zucker (3), we left the question open for the time being.

           

(b) The specific Israeli case law (which in my opinion has no parallel at all in English and American judgments) that limits the action of "estoppel by res judicata" to "a positive finding", as distinct from "lack of finding". is important (or might be important) only in the "opposite" case and does not apply to the "direct" case dealt with here. I will explain,

 

            I shall not resort to article 18 37 of the Mejelle, because with all respect I join in the opinion of Landau J. in Mizrahi v. Rahamim (4), that this article "has become obsolete". But I actually come to the same conclusion as my learned colleague, Silberg J., on the basis of the Common law distinction between res judicata as a "bar" and res judicata as "collateral estoppel". See Freeman, Law of Judgments (5th ed.) Vol. II, paras. 546, 676; Restatement of Law of Judgments sec. 68, p. 293. The difference is, briefly and in so far as it concerns us here, that any judgment on the merits of the case in favour of a defendant, be "its findings" or "lack of findings" what they are, will "bar" every further action by the plaintiff against the detendant for the same cause of action, and will serve as a complete defence to the action. Furthermore, "collateral estoppel" is set up by the express or implicit decision of the judgment as to the facts in dispute between the parties; that decision will serve as "an estoppel" between the parties in any further case, no matter what the cause of action may be. An exception: a decision of a court under its "incidental" jurisdiction, under sec. 35 of the Courts Law, 1957, in a matter under the "exclusive jurisdiction of another court or tribunal": such decision is only valid "for the purposes of that matter" and cannot serve as "collateral estoppel"; Cohen v. Cohen (5); Restatement. para. 71 p. 326. Another exception is created by Israeli case law (Felman (1); Amrani v. Attorney-General (6): Ma'aravi v. Attorney General (7); Zucker (3) etc.). which limits the applicability of "collateral estoppel" to "a positive finding", as distinguished from "lack of a finding". This last distinction does not apply to "barring" operation of a judgment (or, in the case of a judgment in favour of the plaintiff as a "merger"), as appears, with difference in terminology only, from the observations of Silberg J. in Felman (1) at 324 and of Berinson J. in Amrani (6) at 599.

 

In the case before us, the judgment in favour of the employee acts as a "bar" in favour of the employer. The vicarious liability of the employer springs from the principal liability of the employee, and when there is no such principal liability there is no attached (vicarious) liability. No "finding" or "lack of finding" in the judgment, but the very exculpation of the employee of commission of the wrongful act against the plaintiff-appellant removes the ground from under the claim which is based on vicarious liability for the same wrongful act, and serves as a full defence to the respondents. Accordingly the appeal should be dismissed.

           

WITKON J                 I concur with the conclusion reached by my respected colleagues.

 

            Appeal dismissed.

            Judgment given on June 21, 1964.

 

 

 

Appeal allowed.

9 Tammuz 5766.

5 July 2006.

 

 

Crim. A. 35/52

 

SHALOM ROTENSTREICH

v.

ATTORNEY-GENERAL

 

 

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

[February 12, 1953]

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

 

 

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

 

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

 

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

 

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

         

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

         

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

 

Israel case referred to:

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

 

English cases referred to:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

American case referred to:

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

 

Bar-Shira and Eliad for the appellant.

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

 

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

           

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

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

 

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

           

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

 

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

           

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

           

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

 

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

 

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

           

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

           

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

           

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

           

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

           

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

 

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

 

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

 

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

 

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

           

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

 

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

           

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

 

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

 

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

           

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

 

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

 

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

 

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

           

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

 

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

           

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

 

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

 

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

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

3)      as trespassers.

 

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

           

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

           

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

           

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

 

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

           

            The facts in that case were as follows:-

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

 

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

           

            "To the knowledge of the Excelsior Wire Rope Company these children played uninterruptedly round this post (the reference is to the post to which the pulley-wheel was affixed); there was nothing to prevent them doing it, and I cannot find that there is any evidence to show that, except at the moment when this machine was going to be set in action, they were ever driven away. It was therefore well known to the appellants that when this machine was going to start it was extremely likely that children would be there and, with the wire in motion, would be exposed to grave danger."

 

            In the judgment of Lord Warrington of Clyffe we read (at pp. 411, 419):-

           

            "There is ample evidence that, to the knowledge of the servants of the appellants, children were in the habit, not only of playing around this sheave and using it for purposes connected with their games, but were actually in the habit of playing with the machine, and the ropes and so forth attached to it, so that it was found necessary, when they were about to use the machine, to see that it had not been put out of gear by the children. Under those circumstances, it seems to me quite plain that there was a duty upon the present appellants, by their servants, when they were about to put this machine in motion, so that it would become a danger to any children who might be in the neighbourhood, to see whether or not at that moment there were children in such a position as to be exposed to danger".

 

            And a passage from the speech of Lord Thankerton (at p. 414) :-

           

            "...the children not only had constant and free access to the machine itself, but clearly to the knowledge of the appellants they were in the habit of interfering and playing with both the post and the wire rope, and it was only when the occasion of putting the machine into operation arose that there was any question of keeping the children away from that spot".

           

            That was the ratio decidendi in the judgment given in that case by the majority of the judges in the House of Lords, and only Lord Atkin, in his short judgment, sees the matter apparently in a different light, and determines the responsibility on the basis of the fact that the company was not itself the owner, and not even the occupier, of the plot of land; it was only licensed by the Marquess of Bute to put up the post with the wheel there, and so its liability towards the injured person was greater than that of the owner or of the occupier (see pp. 413, 413).

           

            In analysing the common ratio of the majority judges as aforesaid, and in trying to endow it with a more fundamental character, we find - so it seems to me - that there is a certain combination and fusion of both the notion of "licence" and the notion of "the reckless act". The children were allowed to be by the wheel; therefore it was a reckless act on the part of the company's servants to start the dynamo and the wheel without first ascertaining whether or not there were in fact children there at that very moment. But for that fact, that is to say. if the children had been forbidden to be on the spot at all, as happened in Addie's case (9) , it would have been neither a wilful act nor a reckless act on their part to set the said wheel in motion.

           

            And that very problem, namely, In what way Addie and Sons v. Dumbreck (9) differs from Excelsior Wire Rope Co. Ltd. v Callan (2), was dealt with by Scrutton L.J. in his judgment in Mourton v. Poulter (10), at p. 190. In the opinion of Scrutton L.J., the difference between these two cases is that in the first case a small hillock separated the wheel from its operators, and from where they stood they could not see the wheel and the children, whereas in the second case the starting signal was given at a distance of twenty yards from the wheel, and the man could have seen the children had he bothered to turn his head. However, it seems from what the learned Lord Justice immediately went on to say that he was not so certain of the correctness of this distinction - and rightly so - since there is no real basis for the factual distinction in the points that were emphasized in the latter judgment. Nevertheless, even if one assumes that that is indeed the correct distinction, that is still no authority for the view that, with the giving of the judgment in Excelsior v. Callan (9), the owner's liability towards the trespasser was broadened in principle, and that it henceforth extends (as the learned judge in the court below thought) also to an omission involving reckless disregard of the presence of the latter. For even in Excelsior v. Callan (2) there was no omission but a positive act, since the child was injured by the setting of the wheel in motion.

 

            Putting the matter shortly, there is nothing in the judgment given in the case of Excelsior v. Callan (9), which constitutes a development or revision of the ruling laid dozen in Addie's case (9), and the owner's (or occupier's) liability towards the trespasser still remains as it was. Its limits have not been overstepped and they are as they always were, namely, either a wilful act on the part of the owner, or an act involving reckless disregard of the presence of the trespasser. He is not liable for damage caused to the trespasser through "passive" negligence, that is to say, if he is injured by something - and the something is not dangerous - situated for some time past on the owner's land, and no new act has been done to injure the trespasser or endanger him. "As the land remains in the same state, a trespasser must take it as he finds it, and the owner is not bound to worn him." Those were the words of Scrutton L.J. himself (at p. 191) in setting out the reasons for the decision given by him in Mourton v. Poulter (10) and they also correspond to what was said by him in Hardy's case (8) (at pp. 473, 474).

           

            (f) In later judgments too we do not find any departure from that clear rule; on the contrary, we find it affirmed again and again. I shall not set out all the judgments given on this point since 1930. I shall only call attention to the remarks of Lord Morris in the case of Buckland v. Guildford Gas Light and Coke Co. (11), on p. 1092 (between the letters D and E), and to the judgment of the House of Lords in 1952 in Edwards v. Railways Executives (19), the two recent decisions to which counsel for the appellant drew our attention. It will be noted here that the rule which has been discussed above corresponds to the position in American law, as expressed in the majority judgment in the well-known case of United Zinc and Chemicals Co. v. Britt (19).

           

6.         It follows from what has been said that since in the present case there was no injurious act on the part of the owners (the pool had for some time been situated on their land, and they were not "working" it when the accident happened), and since, as the learned judge held, the children were trespassers, the negligence of the present appellant - the "passive" negligence as we have called it - does not make them liable for the payment of damages. And the conclusion that follows is that, if the view is sound that the criminal negligence required for a conviction under section 218 must be of a degree greater, or at the very least no less, than the civil negligence required for making a person liable to pay damages, the learned judge ought to have acquitted the appellant.

           

7.  I said if the view was sound, and with that we have reached the second, perhaps most important, question in this appeal. From what is said in paragraph 9 of the judgment of the court below, it seems that the learned judge was not entirely at case about the analogy between the rules of criminal and civil law - notwithstanding the fact that he made it the basis of his judgment. The problem is by no means an easy one, and we still lack precedents to guide us on to the correct path. In Shvili v. Attorney-General (1), Cheshin J. commented obiter, "that these factors (he is referring to the terms of the offence under section 218) are to a certain extent identical with the elements required to prove civil liability in an action arising from manslaughter by negligence in English law," but since there was no need for deciding the matter in that case, he did not go deeply into the problem, and did not explain to what extent they are identical with those factors. At all events, the very expression "to a certain extent" points - so it seems to me - to the lack of a complete resemblance between the two matters mentioned.

           

8.  Let us take a look at the wording of the section, exactly as it is written in the original English : -

 

"218. Any person who by want of precaution or by any rash or careless act, not amounting to culpable negligence, unintentionally causes the death of another person, is guilty of a misdemeanour and is liable to imprisonment for two years or to a fine of one hundred pounds."

...........................................................................

 

            It is quite plain that not every want of precaution and not every rash and careless act which causes death, is sufficient to convict a person of an offence under section 218. They must be of a certain "degree", and not too great; the act must involve negligence, and must not involve culpable negligence. I shall not enquire here where the borderline is to be drawn between the two, for I know that one cannot accurately fix its exact position. It is a question of degree, and the matter is left to the judge who hears the case. But one may certainly ask - and that is the question which interests us in this appeal : what is the relation between civil liability and criminal liability, and can the matter be put by saying that negligence which, for whatever reason, does not involve civil liability to pay damages, entails criminal liability for an offence under the section?

           

9. Now the question has apparently - and I stress the word apparently - been considered countless times in the English courts, and has been completely solved there, although the solution is not clear. Thus we read in the well-known judgment of Lord Hewart in R. v. Bateman (13), (at p. 16) :-

 

". . . . . the explanation of criminal negligence to a jury should not be a mere question of epithets. It is, in a sense, a question of degree..... but there is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime".

 

            And what is the difference? As to that, it is stated in an earlier passage (at p. 11) :-

           

". . . . . in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State. . . . ."

 

            So the "felonious intent" or mens rea, in the classical, and not the modern, meaning of the term, is the criterion of criminal responsibility, as distinct from civil liability, and that is the substantial difference arising from the distinction between the two categories of negligence.

           

            A similar idea had been expressed fifty years earlier by Brett J. in the case of R. v. Nicholls (14). A small child, the illegitimate son of a young spinster, died from lack of adequate nourishment, and his grandmother, who had voluntarily taken upon herself to maintain him, was put on trial on a charge of manslaughter by negligence, and acquitted. The instructions of Brett J. to the jury were (at p. 76) as follows :

 

"..... Mere negligence will not do, there must be wicked negligence, that is, negligence so great, that you must be of opinion that the prisoner had a wicked mind, in the sense that she was reckless and careless whether the creature died or not."

 

            Similarly, in the charge of Stephen J. to the jury in the case of R. v. Doherty (15), we come across a concept, also dealing with the state of mind of an accused person, although it is not so clearly expressed.

           

". . . . . Manslaughter by negligence occurs when a person is doing anything dangerous in itself......and conducts himself in regard to it in such a careless manner that the jury feel that he is guilty of culpable negligence, and ought to be punished. . . . . But if there was only the kind of forgetfulness which is common to everybody, or if there was a slight want of skill, any injury which resulted might furnish a ground for claiming civil damages, but it would be wrong to Proceed against a man criminally in respect of such injury." (See p. 309.)

 

            Finally, one last reference, where stress was put, without pointing to the qualitative distinction which is involved, as was done in Bateman's case (13), on the "quantitative" difference - the difference of degree - between civil negligence and criminal negligence. I refer to the words of Lord Atkin in the well-known case of Andrews v. Director of Public Information (16), (at p. 47) : -

 

            "Simple lack of care such as will constitute civil liability is not enough. Nor purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established."

           

10. It follows from all these authorities that civil liability is not the same as criminal liability, and that the latter (in cases of manslaughter by negligence) requires, as a sine qua non, a degree of negligence far higher, or more tainted with guilt, than the negligence that suffices to impose liability to pay damages.

 

11. What then is the conclusion to be drawn from these citations as regards the question raised by me at the end of paragraph 8? Can we maintain that standard when we come to  "measure" the degree of negligence required to convict a person of an offence under section 218?

 

            My answer to that is in the negative. For the problem with which we are dealing does not correspond with the example quoted, and I therefore inserted the word "apparently" at the beginning of the ninth paragraph. All the English authorities cited dealt with a charge of manslaughter by negligence - that is, the felony, falling in our country, under certain conditions, within the scope of the offence set out in section 212; 1) whereas our concern is with the special offence set out in section 218. The drawback is that the offence in section 218 is a novelty conceived in the library of the Palestine legislator; it has no counterpart in English criminal law, and so the distinction made in the English judgments quoted above has no application.

           

            Let me explain what I mean. The offence laid down in section 218 is an exceptional offence, and its provisions and exceptions are of the most special kind. It contains two almost opposites under one heading : negligence entailing punishment, yet for all that not culpable. Whatever the exact meaning of that adjective, one thing is certain : that here the legislator did not introduce the "felonious intent", the mens rea in the classical meaning of the term. This is not one of the usual phenomena in criminal legislation; it is by its very nature exceptional, even in the criminal legislation by regulation of our generation. See the stimulating words of Lord Goddard, C.J. in the judgment given in 1949 : -

           

"Of late years the courts have been so accustomed to dealing with a host of offences created by regulations and orders independent of guilty intention that it is desirable to emphasize that such cases should be regarded as exceptions to the rule that a person cannot be convicted of a crime unless he has not only committed a forbidden act or default but also that a wrongful intention or blameworthy condition of mind can be imputed to him." (Younghusband v. Luftig (17), at p. 370.)

 

            In other words, "mens rea" - the classical "mens rea" - is still one of the fundamental properties of criminal legislation, apart from those special cases where the legislator deliberately dispenses with it. Section 218 is one of the cases where the legislator has waived this important condition; he had his reasons, though he did not disclose them to us. The citizen is thereby given a special warning to take particular care with regard to other people's lives and not to do anything, even unknowingly, which endangers the life of a fellow-being. If a person is not careful, and a man loses his life, he gets his punishment as a warning to others not to make the same mistake again. The meting out of punishment here is, if one may say so, a precautionary measure employed by the legislator to safeguard the citizen's life against want of precaution on the part of his fellow-citizens. If such is the case, if that indeed was the intention and aim of section 218, there is no logic in the special criminal liability under this section being dependent upon and adjudged according to the terms and exceptions of civil liability.

 

            But then it may be asked, how is that possible? Can an act which does not suffice to make a person liable in damages, result in the same person being sent to prison for two years? My answer is, that there is nothing surprising in that; it is not the first time such a thing has happened, as is shown by the doctrine of "contributory negligence" : this serves (in certain circumstances) as a defence to a defendant in an action in tort, but is no defence to an accused in a criminal prosecution. Take another example which springs to mind in this very connection : the situation that existed here in Palestine between the publishing of the Criminal Code Ordinance, 1936, and the coming into force of the Civil Wrongs Ordinance, 1944. During that period it was certainly possible for a person to be held liable and punished for an offence under section 218, and yet not to be held liable and not to pay damages for precisely the same act, in the case of a civil Claim. The difference between the civil action and the criminal prosecution under section 218 is simple and clear : in the civil action the parties are citizen and citizen, and the matter under consideration is the payment of money for a monetary loss; in a criminal prosecution the parties are the citizen and the State, and the matter under consideration is the penalty of imprisonment (or fine) in order to prevent the loss of life; there will therefore be absolutely nothing illogical in acting with greater severity, and imposing liability for less negligence, particularly in the second case. Anyone who does not admit this distinction, and considers that the negligence necessary for a conviction under section 218 must be no less, and perhaps even greater, than the negligence required for liability in an action in tort, will be at pains to excuse and explain the palpable fact that the criminal liability under section 218 was limited only to cases of causing death, and the legislator did not extend it, either in the same section or elsewhere, to cover cases of wounding and bodily injury as well; for the general "criminal negligence" dealt with in Chapter 26 of the Criminal Code Ordinance, 1936 (sections 243-247, is not identical with the "non-culpable negligence" in section 218, but is of a higher degree, as its name implies.

 

12. The idea propounded here is fraught with very important consequences, but there is no necessity to draw all the possible conclusions from it within the framework of the present appeal. It is sufficient for as to restrict the principle herein to the specific, concrete problem before us, namely, whether the fact that the children, the victims of the accident, were trespassers (a fact which, in the circumstances of the case was, as we have seen, likely to serve us a bar to any civil claim for the payment of damages) is enough to result in the appellant's acquittal in respect of the criminal offence with which he has been charged under section 218. We must constantly bear in mind the fact that the children's visits in order to bathe in the pool were known and anticipated by the men working on the undertaking, but that they did not approve of them, so that the appellant's argument is not: "It did not occur to me that someone would dare to trespass on my property", but: "It did occur to me, but nevertheless I am exempt from liability." The question is whether to accept that argument in the criminal case before us.

 

            It seems to me that within these restricted limits, at all events, there is no room for query or doubt. Why is the trespasser not entitled to the payment of damages for the accident that occurred to him as a result of the passive negligence of the owner? Because the trespasser, as has been stated, "entered the place on his own responsibility"; because he agreed, as it were ("agreed" in the broad and not in the technical meaning of the term), to be responsible for the damage that would be caused to him as a consequence of his endangering himself. That being so, when does this concept - the concept of agreement and waiver - apply? When one is concerned with a civil, private action of an injured person seeking to replace an out-of-pocket loss, and not when the prosecution is a criminal, public one, brought by the State, with the purpose of preventing danger to life. For the life of the individual is not his private property, and he cannot give up or waive his right to it. Apart from that, the concern here is not for his own life alone.

           

13.       Finally, when the only possible defence available to the negligent defendant in an action in tort is that the injured plaintiff is a trespasser, then that defence will not avail him when he stands trial on a criminal charge under section 218.

 

            But there is one important exception to that rule, and it would be proper to state and stress it, for the avoidance of misunderstanding and error. Sometimes the fact that the deceased was a trespasser will serve the accused as a defence under section 218, not directly but indirectly, namely, when the fact is to be considered as reducing or canceling out the very negligence of the defendant. Putting it concretely: when, in the circumstances of the case, the accused is not bound to anticipate that the stranger who was killed would enter and be injured upon property that was not his. In such a case the judge will acquit the accused, not because of the deceased's act of trespass, but because of the accused's lack of negligence - a subtle distinction, but one that is fairly clear. In the present case there was no ground for such an argument, nor was it argued, as I have already indicated. The forbidden visits to the grounds of the pool were in this case offences regarded by children as of no consequence; the plant manager foresaw them, and could not fail to foresee them, so that such trespass, as a fact, was not calculated to reduce the appellant's negligence to the extent required in section 218. The sole question here, therefore, is whether it was capable of being a legal defence, in spite of the fact of negligence, and to that, too, the answer must be in the negative, on the ground explained at the end of the foregoing paragraph.

 

14. The conclusion that I have reached, therefore, is that since in the present case it was positively determined that the death of the children was caused by the negligence of the appellant within the meaning of section 218, the fact that the children were trespassers does not exempt him from criminal liability according to that section. There is equally no basis, in my opinion, for the appeal against the sentence.

 

            In my opinion, therefore, the appeal should be dismissed.

           

            CHESHIN J.  This is an appeal from a judgment of the District Court of Tel Aviv in which the appellant was convicted of causing death by want of precaution not amounting to culpable negligence, under section 218 of the Criminal Code Ordinance, 1936. and was sentenced to three months' imprisonment. The appeal is against both the conviction itself and the severity of the sentence.

           

2. The facts which brought the appellant before the court are not in dispute, and accordingly I have only to repeat with the utmost brevity the findings of the court below:-

 

A. The appellant is the manager of the "Even Ve-Sid" plant in Ramla. The grounds of the plant were unfenced, and on a moderately high rise is a square- shaped water-pool which covers an area of sixty-four square metres and serves the needs of the plant. The walls of the pool are slightly higher than the top of the rise, but the approach to the waters of the pool does not involve particular difficulty since a few stone steps lead from the ground to the edge of the walls. On the other hand, exit from the pool is difficult because the interior steps, situated under the level of the water, are slippery and serve as an insecure stepping-place. No satisfactory watch was placed over the pool, nor were any special precautions taken against strangers coming to bathe in it. Children of the neighbourhood, therefore, were in the habit of entering the grounds of the plant and of enjoying a dip in the pool when no one was looking on. The appellant, however, not only did not permit them to do so, but instructed his subordinates who worked at the place to drive away any child found wandering about on the premises of the plant close to the pool. The employees carried out these instructions, and occasionally, when they saw children bathing in the pool, would also remove the clothes left on the banks of the pool. This led several times to complaints and clashes between the employees and the children's parents. The appellant himself, too, would drive children away when they came to bathe in the pool.

 

B. On August 53, 1950, about midday, two children about nine years old named Valerie Dolman and Moshe Alters, entered the grounds of the plant, and scent down to bathe in the pool. These children had been warned once before not to come and bathe in the pool, but they paid no attention to that warning, and from the manner in which they surreptitiously crept into the grounds of the plant it was plain that they had the prohibition in mind. Close to half-past-three in the afternoon the dead bodies of these two children were taken out of the water, one holding the other's hand. The cause of death, as determined by the doctor who examined the bodies, was drowning.

 

C. Against this background the appellant was prosecuted. convicted and sentenced, as I have said.

 

3. The learned District Court judge held that the children were trespassers when they came to bathe in the pool, but considered that this fact did not exempt the appellant from criminal liability towards them. After reviewing the development of the case-law concerning negligence in the law of torts, he came to the conclusion that according to English law as it stands at present (that is to say, after the judgment in the Excelsior case (2), which will be referred to later) a person is under a civil liability even towards a trespasser, as long as he, whether by an act or by an omission, acts negligently to the extent of lack of consideration (in the words of the learned judge, "a mood of 'I don't care' "), and that that test must also be applied ashen we are enquiring whether the elements of the offence set out in section 218 are present. In the present case, therefore, the appellant, knowing of the danger awaiting children who bathe in the pool, took no sufficient steps to keep them away from the place and to prevent them going down to the pool. He thus acted negligently indicating "a mood of 'I don't care' ". The criminal liability stated in section 218, therefore, applies to him.

 

4.. Section 218 provides that : -

 

"Any person who by want of precaution or by any rash or careless act, not amounting to culpable negligence, unintentionally causes the death of another person, is guilty of a misdemeanour and is liable to imprisonment for two years or to a fine of one hundred pounds."

           

            From this section it is clear that the principal elements of the offence are twofold, namely: (a) causing death unintentionally, by (b) a want of precaution not amounting to culpable negligence.

            It does not say just "want of precaution", but "want of precaution not amounting to culpable negligence." It follows that the prosecution does not have to prove a high degree of negligence, felonious negligence, but that it is sufficient to prove want of precaution amounting to a slight degree of negligence. But the problem here is not the degree of negligence required to create the offence, but rather the question, in relation to whom is a person obliged to act with caution not amounting to negligence, and for the death of what class of persons will he be accountable under section 218 if he has not so acted cautiously towards them. Putting it another way, does section 218 set out in full all the elements of the offence stated in it, or is there one additional element, which is not expressly mentioned in it, because it is taken for granted and is in the very, nature of things.

           

5.  Section 218 has no counterpart in English criminal law, and we cannot, therefore, avail ourselves of the essential principles laid down in that law. But there are many precedents in English law concerning the civil liability involved in a person's negligence. It will not be entirely superfluous therefore to compare the substance of that same civil liability with the substance of the criminal liability stated in section 218, so as thereby to clarify and ascertain whether they differ from one another, and if they do, what is the difference between them insofar as the principle to be derived from them is concerned. .

 

6. One fundamental principle runs like a golden thread through the long line of English judgments dealing with the civil liability of a person for his neighbour's injuries. That principle is that liability depends on the duty that a person owes to his neighbour to take care, and that the duty imposed on a person in relation to a trespasser is not as heavy as that in relation to a licensee or invitee. In the case of Grand Trunk Railway Co. of Canada v. Barnett (3), before the Privy Council, which dealt with the rights of a trespasser who had been injured while travelling on a railway, Lord Robson said (at p. 369) :

 

            "The railway company was undoubtedly under a duty to the plaintiff not wilfully, to injure him; they were not entitled, unnecessarily and knowingly, to increase the normal risk by deliberately placing unexpected dangers in his way, but to say that they were liable to a trespasser for the negligence of their servants is to place them under a duty to him (the trespasser) of the some character as that which they undertake to those whom they carry for reward. The authorities do not justify the imposition of any such obligation in such circumstances."

           

            In the case of Latham v. Johnson (6), the question was this: what is the liability to the public of a landowner who allows the public, young and old, to pass over his land and to play on it. Farwell L.J., dealing with this question, cited with approval (at p. 405) the following words of Willes J., in the case of Gautret v. Egerton (18):-

           

            "To bring the case within the category of actionable negligence, some wrongful act must be shown, or a breach of some positive duty; otherwise, a man who allows strangers to roam over his property would be held to be answerable for not protecting them against any danger which they might encounter whilst using the licence."

 

            And if the extent of a person's liability towards a licensee is restricted within those bounds, how much more so towards a trespasser. It should be noted that at the end of his remarks (at p. 407), Farwell L.J. comes to the conclusion that the extent of a landowner's liability towards a child is no greater than his liability towards an adult.

           

7. In his judgment in the case of Latham v. Johnson (6), Hamilton L.J. divides the persons who come on to a man's premises into three categories, from the point of view of the latter's liability towards them. They are : invitees, licensees and trespassers. "The lowest", adds Hamilton L.J., "is the duty towards a trespasser. More care, though not much, is owed to a licensee - more again to an invitee."

 

8. The case of Hardy v. Central London Railways Co. (8) also dealt with the question of a landowner's liability towards a child trespasser who had been injured, and the following are short quotations from the remarks of the judges who sat in that case : -

 

Bankes L.J. : "If the plaintiff was a trespasser then he has no right of action, as there is no evidence of any allurement (placed there) with malicious intent to injure."

 

Warrington L.J. : "Once the conclusion is arrived at that the plaintiff was a trespasser, the judgment of the Court ought to be in the defendant's favour."

 

            Scrutton L.J. in unequivocal language makes clear what had only been hinted at in other places. The learned Lord Justice said : -

           

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

 

9. In the case of Robert Addie v. Dumbreck (9), Lord Hailsham divides the persons that come to a man's premises into three classes, just as Hamilton L.J. did in Latham v. Johnson. (6), namely, invitees, licensees and trespassers; and after dealing with the onerous nature of the duty imposed upon the landowner towards the first two classes and the extent of the care that he is bound to take towards them, he comes to the third class and says (at p. 865) : -

 

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

 

10. Viscount Dunedin, too, spoke in the same spirit in his speech in the same case (at pp. 370, 371). In answer to the argument put forward there, that a person is obliged to fence his land, he lays down (at pp. 879, 878) that : -

 

            "There is no duty on a proprietor to fence his land against the world under sanction that, if he does not, those who come over it become licensees..... But when n proprietor protests and goes on protesting; turning away people when he meets them. . . . . and giving no countenance in anything that he does to their presence there, then I think no Court has a right to say that permission must be implied."

 

            The same learned judge as well does not see any difference between a child trespasser and an adult. The following are his words on this point (at p. 376) :-

           

            "The truth is that in cases of trespass there can be no difference in the case of children and adults, because if there is no duty to take care that cannot vary according to who is the trespasser."

 

11.       I do not think (as the learned judge in the court below thought) that the judgment in the case of Excelsior Wire Rope Co. v. Callan (2) reversed the principle expressed distinctly and in such clear language in the precedents cited. In the Excelsior case (2), it appears that two children, brother and sister, were injured on a plot of ground occupied by the defendant company, while playing with a pulley-wire which was used for moving goods wagons and was operated by a dynamo machine situated at a distance from the spot. The children of the neighbourhood were in the habit of playing on that plot of land, and the company's servants did not drive them away from the land except when they were about to work the dynamo machine and set the wire in motion. On the day of the accident also the company's servants so acted, but because of the great distance between the place where the machine stood and the place where the wire was stretched, the servants did not notice that the children had returned and come to play with the wire after they had been driven away from there. On the basis of those facts, Lord Buckmaster stated that : -

 

            "It was therefore well known to the appellants that when this machine was going to start it was extremely likely that children would be there and, with the wire in motion, would be exposed to grave danger.

           

            "In such circumstances the duty owned by the appellants, when they set the machinery in motion, was to see that no child was there, and this duty they failed to discharge."

           

            Viscount Dunedin in the same case repeats the essence of what he had previously said in Addie's case (9), and although he assumes that the children were trespassers, he comes to the conclusion that nevertheless the company must pay damages because it acted - in the language of Lord Hailsham in Addie's case (9) - "with reckless disregard of the presence of the trespasser", or, in the language of Viscount Dunedin himself in the same case - "an act so reckless as to be tantamount to malicious acting. "

           

            From these dicta it is clear that in the Excelsior case (2) the House of Lords did not intend to decide in opposition to the principles laid down by it and by other courts in previous cases as the learned judge thought in the present case, but on the contrary, the Excelsior case (2) serves as one more link in the long chain of judgments determining the liability, or absence of liability, of a landowner towards the various classes of people entering on his land, and the feature common to them all, namely, that towards trespasser there is no duty on the owner of land, apart from the duty not to do a positive act, with malicious intention or out of reckless lack of consideration of the fact of the trespasser being on the land.

           

12. The case of Mourton v. Poulter (10), was also decided according to the principles laid down in the precedents cited, and does not depart from them to the right or to the left. Scrutton L.J. says in the same case (at p. 191) : -

 

            "The liability of an owner of land to trespassers does not arise where there is on the land a continuing trap. . . . . There, as the land remains in the same state, a trespasser must take it as he finds it, and the owner is not bound to warn him. That, however, is a different case from the case in which a man does something which makes a change in the condition of the land, as where he starts a wheel, fells a tree, or sets off a blast when he knows that people are standing near. In each of these cases he owes a duty to these people even though they are trespassers to take care to give them warning."

 

13. From this group of cases, therefore, one rule, brief and clear, can be deduced: a landowner is not obliged to guard his trespasser or to warn him against any form of danger, apparent or concealed, found on his land. But the moment he proposes to do some act which involves a change in the state of the land and an increase of the danger, the duty is imposed on him, towards trespassers as well, to take reasonable care and to inform them of the change about to take place on the land. In every other case, to use the language of Lord Robson in Grand Trunk Railway Co. v. Barnett (3), "a man trespasses at his own risk".

 

14. That is the English rule in the law of torts, now as always, and it has remained so without any alteration until this day (see the two recent judgments on this point: Buckland v. Guildford Gas, Light & Coke Co. (11), and Edwards v. Railway Executive (12)).

 

15. Before passing to the question to what extent these English principles can serve as guides to the solution of the problem before as, let us linger for one moment only over the question in what way the rules of civil negligence are distinguishable from the rules of criminal negligence in English common law. The Court of Criminal Appeal considered this question thoroughly in the case of R. v. Bateman (13) in which Lord Hewart L.C.J. defines the distinction thus (at p. 10) : -

 

            "If A. has caused the death of B. by alleged negligence, then, in order to establish civil liability, the plaintiff must prove (in addition to pecuniary loss caused by the death) that A. owed a duty to B. to take care, that the duty was not discharged, and that the default caused the death of B. To convict A. of manslaughter, 'the prosecution must prove the three things above mentioned and must satisfy the jury, in addition, that A.'s negligence amounted to a crime."

 

            Further on in the same judgment he said (at p. 11) : -

 

            "In the civil action, if it is proved that A. fell short of the standard of reasonable care required by law, it matters not how far he fell short of that standard. The extent of his liability depends not on the degree of negligence, but on the amount of damage done. In a criminal Court, on the contrary, the amount and degree of negligence are the determining question. ''

           

16. From this language we gather that negligence in English law is a matter of degree : if the negligence reaches a high degree, and goes beyond the restricted framework of making good the damage and of fixing compensation between citizen and citizen, it is regarded as a criminal offence; if it does not reach this high degree, it does not posses the element of criminality, and the injured person's remedy is in damages only.

 

17. This principle was aptly expressed in the case of Andrews v. Director of Public Prosecutions (16). In that case, Lord Atkin said (at p. 47) : -

 

            "Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established."

           

18. These words spoken by the English judges on the question of the civil and criminal responsibility involved in acts of negligence can, in my opinion, show us the way to the solution of the question that I posed at the opening of my judgment. In support of a charge of manslaughter by negligence in English law, you have to prove that the accused acted with negligence of the highest order, with culpable negligence, with criminal negligence which holds a man's life as of no account, and does not value the lives of members of the public, and is akin to felony. Such felony is included in the law of this country within the scope of the offence stated in section 212 of the Criminal Code Ordinance. But there is a negligence lighter than that : that is negligence that does not reach the status of felony, being of a lower degree. English law does not count this negligence an offence at all, and it provides that civil law alone shall cover it, through the payment of damages. The legislator of the Criminal Code Ordinance, 1986, on the other hand, considered even this lower degree of negligence a criminal offence - to use his language : "want of precaution . . . . . not amounting to culpable negligence" - and in transferring the basis of the negligence from English civil law to the confines of the criminal law in this country, he found a place for it in section 218.

 

19. Thus we gather that negligence of the higher degree necessary to create a felony in English law is the basis of the offence stated in section 212; whereas the misdemeanour stated in section 218 is created by a lesser degree of negligence, which suffices to support a civil claim for the payment of damages. But it is necessary to state that whether we are concerned with criminal negligence in English law, corresponding to the felony stated in section 212, or with criminal negligence regarded as a misdemeanour under section 218, corresponding to civil negligence in English law and under our own Civil Wrongs Ordinance, we should always bear in mind the words of Lord Hewart L.C.J. in Bateman's case (18) on the common elements necessary for both criminal liability and civil liability in English law. One of those elements is the duty towards the victim to take care. In the absence of such duty, you cannot pin any guilty act on the person who caused the damage.

 

20. That was what this court stated in Shvili v. Attorney- General (1), where it was laid down (at pp. 474, 475) :-

 

            ". . . . . For the purposes of the misdemeanour in section 218, it is essential to prove three elements:

(a) that there was a duty imposed on the defendant towards his victim to take precautionary measures;

(b) that the defendant did not take those measures;

(c) and that as a result thereof the death of the victim was caused."

           

            Later in the same passage, the court added this observation of great import:

           

            "It is permissible perhaps to comment by the way, that these factors are to a certain extent identical with the elements required to prove civil liability in an action arising from manslaughter by negligence in English law.''

           

            These last remarks were made obiter, for they were not in fact necessary for a decision in the case. That explains the reservation contained in the expression, "to a certain extent." In the present case, on the other hand, the question of the duty of a person accused of an offence under section 218 towards his victim is the very spirit and breath of the matter under consideration here, and in my opinion there is no escape from the conclusion to which I have arrived, namely, that no offence under section 218 is committed unless a person is under a duty to his neighbour to take care towards him and that person has not fulfilled that duty in the circumstances stated in the section.

           

21. I shall mention one more factor of greater practical importance. Generally speaking, there is no such thing as bare negligence, negligence which has not caused real damage, and a person is not punished for an act (and the same applies to an omission), although there be in it a measure of negligence, unless the law expressly provides that the same act shall be regarded as a criminal offence. Examples of offences of bare negligence are to be found in section 243 of the Criminal Code Ordinance. A person is punished for such negligence, even though it does not result in actual damage. But where the act of negligence by itself does not amount to an offence, and the law does not provide an accompanying punishment, unless it causes damage, such as causing a person's death, would it be lawful or equitable to punish the doer of the act even though no duty was imposed on him to act cautiously in relation to the victim? Let me illustrate my remarks with some examples from everyday life :

 

A. The owner of a citrus-grove had neglected to attend to his grove situated in the heart of the village. The fence is broken down, and the children are in the habit of getting into the grove in order to pick the leftovers of the fruit and to look for birds' nests amongst the foliage of the trees. Whenever he sees the children wandering about in the grounds of the grove, the owner drives them away from there, but does not close the gap in the fence. A child crept uninvited into the grove, and while climbing one of the trees, fell down and was killed.

 

B. Reuven has built a house but has not put a railing round his roof. The approach to the roof from the staircase does not entail particular difficulty, and from the roof it is easy to get into the living-rooms. Reuven has caught Shimon a number of times wandering about on the roof of the house, and has reproachfully driven him away; hut even afterwards has not put up a railing and has not sealed the entrance to the roof. One night Shimon went on to the roof with the intention of stealing and in the darkness fell down on the pavement of the street below, and his body was shattered.

 

C. Levi has dug a lime-pit inside his grounds next to the house he is building, and has not covered it. He knows that at night-time people go on to his land with the intention of stealing building materials, but in his opinion the damage he is likely to suffer does not cost as much as the wages of a night watchman, and accordingly does not put a watch on the place or even place a warning lamp there. One night, two thieves got into the building which was in the course of erection, one fell off a rotten plank that was used as a ladder to go from floor to floor and broke his neck and the other one drowned in the lime-pit.

 

            Does law or justice require that the owner of the grove or Reuven or Levi be convicted of causing death under section 218? Towards invitees or licensees coming to a person's house, he is in duty bound to act cautiously, but what is his duty in relation to a trespasser committing an offence? Why should we assume that the legislator intended to fasten a criminal offence on to the shoulders of a man, not for an act which he deliberately did to someone who came to his house to commit a crime, but for an act which was done in good faith, or for an omission, that is to say, for not taking care for the welfare and safety of the offender, and for not seeing to it that the latter could carry out his nefarious purpose in complete safety?

           

22. There is, in my opinion, only one conclusion to be drawn, namely, where the legislator makes the creation of the offence dependant, not on the act of negligence itself, but on its effects in relation to a person (and it makes no difference whether those effects are death, according to section 2l2, or any other injury, according to section 244), there can be no conviction unless it is proved, inter alia, that the defendant owed a duty to the victim to take care, and that he did not carry out that duty. This conclusion, for the purpose of the offence stated in section 218, is linked and bound to the rule considered above, namely, that the landowner owes no duty towards an offender trespassing on his land apart from the duty not to injure him by a wilful act. For if that be not so, what then is the difference between a trespasser and an invitee or licensee as regards the criminal liability of the landowner? And what is the difference between a person who digs a pit on public property and one who digs on private property for the purposes of that liability?

 

23. Passing from these general principles to the concrete case before as :

 

            The two children, victims in the "Even Ve-Sid" plant, were trespassers. This was held by the learned judge, and the finding is not open to question. The fact that they were attracted by a child's fancy to the pool in the grounds of the plant, that is to say, that there existed an allurement on the appellant's property - that fact may constitute a factor, among other factors, for the purpose of settling the question whether they came to the place as invitees, licensees or trespassers. But once the fact has been determined (as it was determined in the present case) that they came as trespassers, they must be regarded as trespassers, and there is no longer any importance attaching to the question whether the pool served or did not serve as an allurement to them. Moreover, these children were not just trespassers, that is to say, persons who caused damage from the civil point of view (like the trespasser in English law and in the law of torts of this country), but also committed a criminal offence under section 286 of the Criminal Code Ordinance, 1936. For they had been driven away once or twice from the appellant's property, and nevertheless came back and bothered and annoyed him. Had they been of punishable age they could have been criminally prosecuted. The appellant's one duty towards them was not to do an act wilfully to injure them while they were on his property. He was not obliged to fence in the grounds of the plant so that they would not get into them or even to raise the height of the walls of the pool so that they would not bathe in the waters of the pool. That being so, the blame cannot be put on to his shoulders for the accident that occurred to them.

           

24. Putting it generally, the elements required to prove the offence stated in section 218 are in my opinion not to be found here, and accordingly I think that the appeal should be allowed, and the appellant acquitted.

 

            ASSAF J.  I concur in the opinion of my learned colleague, Cheshin J., and in a few words would add that in my opinion the same result would be arrived at in Jewish law.:

           

            The Mishna in Baba Kama, page 33a reads as follows : -

           

            "If employees come to the private residence of their employer to demand their wages from him and their employer's ox gores them or their employer's dog bites them, with fatal results, the employer is not liable for damage. 1) Others, however, say that employees have the right to come and demand their wages from their employer, and that the employer is liable."

           

            In the Gemara the explanation is given that if the employer lives in the same city and the employees could have claimed their wages waiting outside his house, then they must be deemed to have entered his premises without permission, and in that case all are agreed that the employer is not liable. And if he is in the habit of staying always at home, then they must be deemed to have entered his house with permission to claim their wages, and in that case all are agreed that he is liable. When an employer was concerned of whom it was not known whether he was to be found in town or not, and his employees called him from the entrance of his premises, and he said "yes" to them - does his answer constitute the granting of permission to enter or not ?

           

            At all events, we can see from that discussion, that as regards trespassers entering the landlord's property without permission, there is no duty imposed on him.

           

            Basing himself on that discussion, Maimonides lays down in Chapter 10 of Hilchot Nizkei Mamon, Halachot 11-12 :

           

            "If one enters privately-owned premises without the owner's permission - even if he enters to collect wages or a debt from the owner - and the owner's ox gores him and he dies, the ox must be stoned, but the owner is exempt from paying damages, since the victim had no right to enter another's premises without the owner's consent. When he stood at the entrance and called to the owner, and the owner answered "yes", and then he entered and was gored by the owner's ox and dies, the owner is not liable, for "yes" means no more than 'stay where you are until I speak to you'."

 

            And in Tur Hoshen Mishpat, Article 389, the rule is laid down :

           

            "When employees have entered the employer's property to ask for their wages and the employer's ox has gored them there or his dog has bitten them, if the employer is not accustomed to go out to the market, since he cannot always be found in the market, the employer is liable for injury done to them, for they enter his property with permission; but if he is a person usually to be found in the market, he is not liable, for then they enter without permission.

           

            "And my late father, the Rosh, of blessed memory, wrote: In these days it is the usual custom for employees to enter the employer's house to claim their wages, and even if he be a man who usually goes to the market, he does not carry money about with him in his pocket, to pay the employees, therefore according to the custom he is liable."

 

            Thus Rambam and the Rosh and the Tur all lay down the principle that a man is not bound to act with care, except towards those who enter his premises with permission. That permission does not indeed have to be express, and it depends on custom, provided it is a "usual custom" which is generally practised. On the basis of the words of the Rosh, Maharshal wrote in "Yam shel Shlomo" on Baba Kama, Chapter 8, Article 28 :

           

            "Therefore the law varies according to the custom prevailing at the time, and the employer is liable even if he is a man one can usually find in the market. We see that even among various employers, although all of them live at the same time and in the same place, the law will be different, according to the usage of each particular one of them to be found or not to be found in the market place; a fortiori the law will be different according to the different customs prevailing at different times and at different places."

 

            And it is worthwhile mentioning another passage from Maharshal in the same work that is pertinent to our case:

           

            "I wonder whether there ever was a time in which the custom prevailed - a custom of Sodom - that a man would not enter the house of his neighbour without permission - even if he had some business to transact there. I think the true position is that he is called a trespasser only for the reason, and in case, that the landlord protested against his entering, and refused to accept responsibility for him - unless it was the house of a craftsman which is open for everybody to enter and where everybody is regarded as entering with permission."

           

            A fortiori that is the position in the present case, where the appellant and the employees in the place, who were under his control, continuously objected to the children bathing in the pool, and the matter was also Known to the children's parents living near the place; and he certainly did not undertake to exercise care towards them. But persons entering a craftman's house or a shopkeeper's store are considered as entering with permission and he is bound to exercise care towards them.

           

            This distinction between a person who enters with permission and one who enters without permission is the determining factor not only for the purpose of determining liability in damages, but also for the purpose of determining responsibility before God, i.e. the obligation to take refuge in one of the cities of refuge for having killed another person by inadvertence. The Rambam holds, in reliance on the words of the Gamara in Makot and Baba Kama, in Chapter 6 Hilchot Rotzeah :

           

            "If one enters another's premises without permission and the owner kills him inadvertently, he is exempt from going to a City of Refuge, for Scripture says : 'Or who chances upon his neighbour in a wood'. As a wood is an area which everybody is entitled to enter, including the victim, so the Scripture is to be applied to any such place accessible to the public; hence the law imposing that penalty applies only to a place of this kind. Consequently, if one enters a carpenter's shop without permission, and a block of wood strikes him in the face and kills him, the carpenter is exempt from taking refuge. But if he enters with permission, the carpenter must take refuge."

 

            And in Talmud Yerushalmi, Baba Kama, chapter 8, article 8, we read :

           

            "Rabbi Yossi ben Hanina said: Where a man is standing and felling trees in his yard and an employee enters to claim his wages, and a block of wood falls on him and injures him, he is liable, and if the employee dies, he is not bound to take refuge."

           

            This statement is queried there in view of a contrary opinion held by Rabbi Hiya, and the query is answered in this way. Rabbi Hiya speaks of the case where he did not see him enter, whereas rabbi Yossi speaks of the case where he did see him enter. From this, the Tosaphot rightly conclude (Baba Kama, page 32b, Hayav Be'arba'a), that even when he had seen him enter, he is exempt from taking refuge, because he entered without permission; only when he entered with permission must the owner take refuge.

           

            We see once more that towards a person who enters with permission (even if not invited), there is a duty to act with particular care, even when the owner is engaged in his usual occupation, which does not prima facie involve danger. That is not so, however, in the case of a trespasser.

           

            There is a case reported that was brought before Maharam of Lublin. On account of the attacks of the Tartars on the border districts of Poland, the inhabitants of the District of Wolyn were obliged "to keep their dangerous weapons always ready for use against them", and to receive training from time to time in firing a gun. A certain Jew was training in his courtyard, firing at a marked target on the wall of his house, when a man came into the courtyard from the market, although the non-Jewish squad commander in charge of the Jew who was training, stood outside to warn passers-by not to enter the premises. He did so here, and warned the man not to enter his premises, but the man entered, a bullet hit him and he was killed. The man who fired the shot did not know that anyone had entered; and it was clear that he had no intention of injuring him. The man who had fired the shot came before Maharam to seek a legal ruling; in such cases the person who had caused the harm was usually ordered to go into exile, to fast and to perform additional penances. Taking into account the circumstances of the case, Maharam found it proper not to send him into exile, and one of the reasons given was that the deceased had himself contributed to the result because he had been warned not to enter the place (Responsa Maharam of Lublin, 43). Although there is no complete parallel between that case and the present case, because there the owner of the premises performed an act endangering life, yet there is support, and partial authority for, the rule that a person who enters without permission, and particularly if he is warned not to enter, takes his life into his own hands and releases the other from his duty of care, and from the duty to see whether anyone is on the Premises.

           

            It is true that according to Jewish law every person is obliged to fence every place that constitutes a danger to a man's life, even of a person who enters without permission, and Rambam lays down this rule, based on sources in the Torah and in the commentaries of the sages, in Chapter 11 of Hilchot Rotseah Ushmirat Nefesh :

           

            "Making a parapet on one's roof is a positive commandment, for Scripture says: 'Thou shalt make a parapet for thy roof'. . . . . whether it be one's roof or anything else that is dangerous and might possibly be a stumbling block to someone and cause his death - for example, if one has a well or a pit, with or without water, in his yard - the owner is obliged to build an enclosing wall ten handbreadths high, or else to put a cover over it lest someone fall into it and be killed. Similarly regarding any obstacle which is dangerous to life, there is a positive commandment to remove it and to beware of it, and to be particularly careful in this matter, for Scripture says: 'Take heed unto thyself and take care of thy life'. If he does not remove dangerous obstacles and allows them to remain, he disregards n positive commandment and transgresses the prohibition: Bring no blood."

 

            However, while he "disregards a positive commandment and transgresses the prohibition: Bring no blood", he is not civilly liable for the injuries or the death of a person who entered his premises without permission, and he is also under no criminal liability, that being the great distinction between one who digs a pit on public property and one who digs on private property. A person is obviously forbidden to rear a dangerous dog within his house, unless it is held by chains of iron and tied to the permission and that dog bites him and even kills him, the owner of the dog is exempt from liability towards him (Shulhan Aruh, Hoshen Mishpat, 409). Save for a person who enters a craftman's house, it being customary to enter his house for his craft, for he enters with permission (see the observation of Riva, quoted in the early commentaries and in Tur Hoshen Mishpat, Article 421), "even though he enters for nothing (with no intention of buying ?) the shopkeeper is liable, for he had to guard the life" of the person who entered (Haprisha, ibid). 1

 

Appeal allowed. Conviction and sentence set aside.

Judgment given on February 12, 1953.

 

 CA 4530/91

Ports and Railways Authority

v.

Zim Integrated Shipping Services, Ltd.

 

The Supreme Court sitting as the Court of Civil Appeals

[October 10th, 2000]

Before Vice-President S. Levin, Justices T. Or, E. Mazza, M. Cheshin, I. Zamir

Appeal on the Judgment of the Haifa District Court (Justice T. Strassberg-Cohen) on September 1, 1991 in CC 1195/86.

Facts: The present case raises the question of liability for damage caused during the course of pilotage of a ship.  A ship and a dock were damaged during the course of the pilotage of a ship in the dock.  The owner of the Ship, Zim Integrated Shipping Services, Ltd. repaired the damage that was caused to the Ship, and demanded that the Ports and Railways Authority reimburse it for the cost of the repair.  The owner based the demand on the negligence of the Ports and Railways Authority and the negligence of the pilot for whose actions it was claimed the Ports and Railways Authority bore vicarious liability.  The two central questions that were addressed were: do the owners of a ship have a cause of action against the employer of a pilot who caused damage to a ship in the course of piloting in the area of a port? And, if so, how is the liability to be distributed between the owners of the ship and the pilot’s employer if the damage was caused by the joint fault of the pilot and the ship’s crew.  The District Court imposed two thirds of the liability for the damage on the pilot, and the remaining third on the captain.  The court, based on vicarious liability attributed the liability of the pilot to the Ports and Railways Authority and the liability of the captain to Zim.  The practical ramification of this distribution is that Zim’s suit against the Ports and Railways Authority was successful only in part and the Ports and Railways Authority was required to pay Zim two thirds of the cost of repair of the ship.  The Ports and Railways Authority appealed this decision.

Held:  The Court partially allowed the respondent’s appeal.  The court determined that the Ports and Railways Authority alone is liable to Zim by way of vicarious liability for the pilot’s negligence.  However, the pilot, were he to be sued to compensate Zim for the damage caused to the Ship, would only be obligated, given the contributory negligence of the captain, for half the damage.   Therefore, the Ports and Railways Authority is only obligated to compensate Zim for half of the damage.  The appellants were ordered to pay the respondent’s fees in the sum of NIS 30,000.

Legislation cited:

Torts Caused by Ships in Pilotage Ordinance 1939 ss. 1, 2.

Torts Ordinance [New Version], ss. 2, 11, 13, 13(A) (2) (B), 14, 35, 36, 84(A), 84(B).

Ports Ordinance [New Version] 5731-1971, ss. 13, 53.

Shipping (Sailors) Law 5733-1973, ss.1, 36.

Import and Export Ordinance [New Version] 5731-1971, s. 1.

Addition to the Law Extending the Emergency Regulations (Supervision of Sailing Vessels) (Consolidated Version) 5733-1973, r. 29.

Magella

Ports and Railways Authority Law, 5721-1961, s. 24(A).

 

Regulations Cited:

Haifa Port Regulations [January 7, 1933].

Ports Regulations 5731-1971, rr. 1, 37, 47, 47(a), 69, ch. 6.

Ports Regulations (Pilotage of Vessels in the Ports) 5724-1964.

Ports Regulations (Pilot Licensing) 5724-1964. 

Addendum to the Ports Regulations (Prevention of Collisions in the Sea) 5737-1977.

Prevention of Contamination of Sea Water with Oil (Implementation of the Treaty) Regulations 5747-1987, r. 1.

Shipping (Sailors) Regulations 5736-1976, rr. 22(A), 23.

 

Israeli Supreme Court cases cited:

1. CA 804/80 Sidaar Tanker Corporation v. Eilat-Ashkelon Pipeline Company Ltd., IsrSC 39(1) 393.
2. CA 542/73 Cargo Ships “El Yam” Ltd. v. Ports Authority IsrSC 30(1) 173.
3. CA 502/78 State of Israel v. Nisim IsrSC 35(4) 748.
4. CA 360/80 Michon LeMateh Ltd. v. Karnit-Fund for Compensation of Victims of Road Accidents IsrSC 35(2) 383.
5. CA 22/75 Edri v. Azizian IsrSc 30(1) 701.
6. FH 38/75 Cargo Ships “El Yam” Ltd. v. the Ports Authority IsrSC 30(2) 645.
7. CA 817/81 Ports Authority in Israel v. Zeno (unreported).
8. CA 469/64 Shiphart and Eskorant Genelsheft, A Ross and Kwo v. the Ports Authority in Israel IsrSC 19 (2) 207.
9. CA 582/71 National Insurance Institute v. the Ports Authority IsrSC 27(1)650.
10. CA 85/60 Water Works Company Ltd. v. Segel IsrSC 14 1939.
11. CA 197/58 Eylon v. Yadi IsrSC 12 1459.
12. CA 54/64 Peretz v. Keren Kayemeth LeIsrael Ltd. IsrSC 18(3) 387.
13. FH 15/88 Melekh v. Kurhauser IsrSC 44(2)89.
14. CA 1170/91 B’chor v. Yehiel IsrSC 48(3) 207.
15. CA 145/80 Waknin v. Bet Shemesh Local Council IsrSC 37 (1) 113.
16. CA 243/83 Jerusalem Municipality v. Gordon IsrSC 39(1) 113.

 

 

Israeli District Court cases cited:

1. CC (Haifa) 786/87 Zim v. Ports Authority (unreported).

                                  

American cases cited:

1. United States v. Port of Portland, 147 F. 865 (1906).
2. City of Long Beach v. American President Lines, 223 F.2d 853 (9th Cir., 1955).
3. National Development Company v. City of Long Beach, 187 F.Supp. 109 (1960); 70 Am.Jur. 2d sec. 443 (1987)). 

 

English cases cited:

1. Workington Harbour and Dock Board v. Towerfield  (Owners) [1950] 2 All. E. R. 414
2. The Esso Bernicia [1989] 1 All E.R. 37, 58-60

 

Australian cases cited:

1. Oceanic Crest Shipping Co. v. Pilbara Harbour Services Pty. Ltd. 160 C.L.R. 626

 

Israeli books cited:

[24] Barak, Vicarious Liability in Tort Law (1964)

 

Israeli articles cited:

[25] G. Tedeschi ‘Employer Immunity and the Liability of the Employee’, Mishpatim 13 (1983) 81.

[26] Englard ‘Half a Jubilee to the Civil Torts Ordinance – Problems and Trends’ Mishpatim 5 (1973-1974) 564.

[27] D. Freedman ‘The Law of Property and the Law of Fault’ The Sussman Book (1984) 241.

[28] Gilad ‘Forty Years of Israeli Law – Chapters in Tort Law’ Mishpatim 19 (1980) 647.

[29] D. Mor ‘Liability for Defective Products – Policy Considerations’ Iyunei Mishpat 6 (1978).

[30] Y. Bahat (Buchhalter) ‘Dual Vicarious Liability for the Acts of an Employee – As of When?’ Iyunei Mishpat 4 (1975) 478.

 

Foreign books cited:

1. R.P.A. Douglas, G.K. Geen, The Law of Harbours and Pilotage (London, 4th ed., 1993).
2. A.L. Parks, E.V. Cattell, The Law of Tug, Tow and Pilotage (London, 3rd  ed., 1994).
3. G. Gilmore, C.L. Black, The Law of Admiralty (New York, 2nd ed., 1975).
4. C. Hill, Maritime Law (London, 4th ed., 1995).
5. G.K. Geen, R.P.A. Douglas, The Law of Pilotage (London, 2nd ed., 1983).
6. T.J. Schoenbaum, Admiralty and Maritime Law (Minnesota, 2nd ed., 1994).
7. R.G. Marsden, On Collisions at Sea (London, 12th ed., S. Gault and others (eds.), 1998).

 

 

Foreign articles cited:

1. G.C. Stephenson “A Pilot is a Pilot: Compulsory Pilots – Vessel Owner’s Responsibilities for Intervention and Personal Injury” 70 Tulane L. Rev. (1995-1996) 633.

 

Other:

1. 70 Am. Jur. 2d (Rochester and San Francisco, 1987).

 

 

For the appellant—Ilan Orli.

For the respondent—Shlomo Freedman.

 

JUDGMENT

Justice I. Zamir

The Questions

 1.  This appeal raises two fundamental questions as to the law which applies to pilotage of ships within the area of a port:

[a]  Do the owners of a ship have a cause of action against the employer of a pilot (in fact, against the Ports and Railways Authority) who caused damage to a ship in the course of piloting within the area of a port?

[b]  Assuming the answer is in the affirmative, how is the liability to be distributed among the owners of the ship and the pilot’s employer, if the damage was caused by the joint fault of the ship’s crew and the pilot.

The questions stem primarily from the Torts Caused by Ships in Pilotage Ordinance 1939 (hereinafter: “the Pilotage Ordinance”).  And this is the language of the ordinance in its entirety, as it was originally (in its translation to Hebrew) and as it remained without amendment (even without a new version in Hebrew) from that day until today.

“An ordinance that imposes liability on a vessel’s owners and captains for damage caused as a result of pilotage in the ocean.

1. This ordinance shall be titled Torts Caused by Vessels in Pilotage Ordinance 1939.

   2.  Irrespective of what is said in any Ottoman law or any other law or ordinance, the owners or captain of any vessel in pilotage, whether the pilotage is compulsory or otherwise, will be liable for any loss or damage caused by the vessel or by an error in the navigation of the vessel.”

The Occurrence of the Damage

2.  The damage in this case occurred to the ship Yaffo (hereinafter – “the Ship”) at the Ashdod Port (hereinafter – “the Port”) on September 8, 1979.  That day the Ship entered the port carrying security equipment.  Due to the type of cargo, the Ship had to be turned (in an elliptical motion) and tied to the dock with its bow pointing to the exit.  This maneuver took place, as is customary, with the help of a pilot employed by the Ports and Railways Authority (hereinafter – “the Ports Authority” or “the Authority”).  The pilot was assisted by two of the Authority’s tugboats, which stayed close to the bow and stern of the Ship.  He boarded the Ship prior to its entry into the Port, and gave orders to the two tugboats and the Ship’s crew.  The captain, together with the pilot, was on the navigation bridge of the Ship, and supervised the execution of the orders that the pilot gave to the Ship’s crew.

As the Ship approached the dock it became necessary to brake its advance.  The braking was achieved by activating the motors against the direction of the sail.  The speed of braking was determined by the pilot, in accordance with the distance of the Ship from the dock.  Reports as to the distance were sent to the pilot from two sources: the one source, the workers of the Ports Authority, some of whom waited for the Ship on the dock and some of whom drove the tugboats; the second source, the Ship’s captain, based on reporting that he received from the first officer of the Ship who was at the bow of the Ship.

At a certain stage in the maneuver the pilot ordered a speeding up of the braking speed.  Half a minute after that the pilot changed the order, and ordered a reduction in the speed of the braking.  Suddenly the pilot received a report that the location of the Ship was at a distance of only 5 meters from the dock.  This distance did not fit the Ship’s speed of advancement.  Therefore, the pilot attempted to execute an emergency braking of the Ship.  But this braking also did not succeed in stopping the Ship on time.  The bow of the Ship collided with the dock.  As a result of this collision the Ship and the dock were damaged.

The owner of the Ship, Zim Integrated Shipping Services, Ltd. (hereinafter – “Zim”), repaired the damage that was caused to the Ship, and subsequently demanded that the Ports Authority reimburse it for the cost of the repair.  The reason for the demand was the negligence of the Authority and the negligence of the pilot for whose actions the Authority bears vicarious liability.  After the Authority denied the request, Zim filed suit in the Haifa District Court (in 1986).

The Proceedings in the District Court

3.  The Ports Authority defended itself from the suit with various claims.  For the purpose of this appeal, it will suffice to mention four of the claims.  First, the Ports Authority claimed that there was no negligence on the part of the pilot, as the insufficient braking speed was determined by the pilot on the basis of an erroneous report supplied by the first officer of the Ship as to the distance of the Ship from the dock.  Second, in addition to the negligence of the first officer, the collision was caused by the negligence of the captain, who blindly adopted the guidance of the pilot to reduce the braking speed, and did not fulfill his duty to employ independent discretion when authorizing such an instruction.  In this situation, according to the Authority’s claim, the relatively large contribution to the damage on the part of the first officer and the captain severed the causal link between the negligence of the pilot and the damage.  Third, even if there was negligence on the part of the pilot, the vicarious liability for this negligence is placed on Zim, which was assisted by the pilot for the maneuver, and in this framework supervised (via the captain) his actions.  Fourth, the law in Israel imposes strict liability on a ship’s owner for the damage caused to a ship or by a ship during the course of pilotage, whether the responsibility for the damage is placed on the ship or the ship’s crew or whether the responsibility is placed on another party.  The source for this law, the Ports Authority explained, is to be found in the Pilotage Ordinance.  See paragraph 1 supra.

4.  Evidence as to the details of the event was brought before the District Court.  After examining the evidence, the Court (Justice Strassberg-Cohen) decided to dismiss both the factual claims and the legal claims of the Ports Authority which countered its fundamental liability for the damage.

In the factual realm, the court found that the pilot played a part in causing the collision.  It established that the pilot did not have a good reason to reduce the braking speed immediately after he decided, in light of the nearing of the Ship to the dock, to increase the braking speed.  The pilot enabled the Ship to move at a faster speed than the speed that was necessitated by the distance of the Ship from the dock, and thereby contributed to its late stopping.  The claim, that sees the pilot as one who only assists or advises the Ship’s crew, was also dismissed.  The court ruled that during the course of the maneuver the pilot gave the Ship’s crew orders, and not advice, as to the speed of the Ship.

Despite these determinations, the District Court did not attribute full fault for the damage to the pilot.  It attributed a portion of the fault to the Ship’s captain.  According to the judgment, the captain’s fault stems from the fact that he refrained from intervening in an order that was given by the pilot to reduce the braking speed.  The captain received a report as to the real distance of the Ship from the dock, both from the first officer of the Ship and from the people on shore.  Therefore, he was capable, on the basis of the knowledge and qualifications that he had acquired, to deduce from these reports that the speed of advance that the pilot ordered is too high and may end in a collision.  He even was capable of translating this conclusion to a practical result, as the necessary status within the ship of orders given by the pilot does not take the reins of command over the ship out of the captain’s hands, which includes the ability to fix or cancel a mistaken command which is directed from the pilot to the ship’s crew.

After weighing the pilot’s fault against the captain’s fault, the District Court decided to impose two thirds of the liability for the damage on the pilot, and the remaining third on the captain.  The court translated this liability to the vicarious liability of the employers of the pilot and of the captain, and accordingly attributed the liability of the pilot to the Ports Authority and the liability of the captain to Zim.  The practical ramification of this distribution is that Zim’s suit against the Ports Authority was successful only in part, such that the Ports Authority was required to pay Zim only two thirds of the cost of repair of the Ship.

5.  To reach this result the District Court had to overcome another claim of the Ports Authority.  This is the claim which attributes liability for the entire damage to Zim, not based on the regular principles of Tort Law, but by power of a special law, which is expressed in the Pilotage Ordinance, according to which the owners of a ship bear liability for any damage that is caused in the course of the pilotage of the ship.  See supra paragraph 1.  The court accepted the Authority’s claim that the liability of a ship owner according to the Pilotage Ordinance is strict, but dismissed the claim that such strict liability prevents the suit of the owners against those who damaged the ship.  It explained this by the fact that strict liability according to the Pilotage Ordinance adds a cause of action, but does not detract from existing causes of action.  It was intended to make it easier for one who suffered damage from a ship during the course of pilotage, and to enable him to defray his full damages from the ship, without having to get into the distribution of liability between the ship’s crew and the pilot.  However, at the same time, all the other causes of action which emerge in the framework of the general law due to the occurrence of the damage continue to exist, whether to the benefit of the injured party against the tortfeasor, or whether to the benefit of the one tortfeasor against other tortfeasors.  On the basis of this determination the Court concluded that the Pilotage Ordinance does not detract from the right to sue which Zim has vis-à-vis the Ports Authority for the damage caused to the Ship.  This right, said the District Court, is founded in the general principles of Tort Law, as they were established in the Torts Ordinance [New Version], and the Pilotage Ordinance does not gnaw away at this right at all.

The Appeal

6.  The Ports Authority is appealing the judgment.  In the original appeal it challenged the determinations of the District Court on all fronts, both the factual front and the legal front.  Later, in the course of hearing the appeal, the dispute was narrowed.  The Ports Authority agreed to withdraw its reservations against the factual findings included in the judgment.  It also agreed with Zim, in order to simplify the proceedings, that the negligent conduct of the pilot and the captain was equal.

7.  After removing the factual obstacles from the pathway of the appeal, only the legal claims of the Ports Authority against the judgment of the District Court remained.  The claims are concentrated on these issues: first, the Pilotage Ordinance; second, the status of a pilot who is on a ship.  These issues, although they differ from one another, are tied to one another.  The Ports Authority does not accept the construction that the District Court gave to the Pilotage Ordinance, primarily because it disagrees as to the way in which the District Court conceived of the relationship between the owner of the ship, the captain and the pilot.  It does not agree with the approach of the District Court, which sees the primary purpose of the Pilotage Ordinance to alleviate matters for a third party who suffers damage from a ship in pilotage, but rather is of the view that the primary purpose of the ordinance is to encourage the captain of a ship to intervene in mistaken decisions of a pilot and thereby to lessen the dangers posed by pilotage.  The duty placed on the captain to supervise the pilot, stems, in the opinion of the Ports Authority, from the division of roles between the two, in the framework of which the pilot advises the captain, and the captain alone carries command responsibility.  According to the Authority’s claim, recognition of the existence of a cause of action in favor of a ship, outside of the Pilotage Ordinance, will undermine the duty of supervision placed on the captain.

This and more.  According to the Authority’s claim, to the extent that it is a matter of the tort of negligence (from which the District Court drew the liability of the Ports Authority vis-à-vis the Ship), it is not even necessary to go as far as the Pilotage Ordinance in order to deny the liability of the pilot toward the ship owner.  Since the tort of negligence is based on the existence of a duty of care, and in consideration of the hierarchical distribution of roles between the captain and the pilot, it is not proper to impose on the pilot a duty of care toward the ship owner.  Such a duty will not encourage the captain to prevent damage during the course of pilotage and will erode discipline on the ship, in the face of foreseeable conflicts over authority between the pilot and the captain.

The Ports Authority claims, alternatively, that even if a duty of care was imposed on the pilot toward the ship owner, such a duty would not have the power to justify the result reached by the District Court.  This is so, first, because vicarious liability for negligence of the pilot during the course of the pilotage is imposed on the ship owner and not on the employer of the pilot; second, since the increased duty of care of the captain increases his degree of liability, as compared with the degree of liability of the pilot, to the point of severing the causal connection between the negligence of the pilot and the damage; third, because the increased duty of care of the captain, must, at the very least, increase the liability of the captain, and impose the majority of the damages on him and not the pilot.

8.  Given the importance of a determination on these claims, which in part are coming up in this Court for the first time, the judges on the original panel considering the appeal decided to continue the proceedings before an expanded panel of judges.

9.  The cornerstone in the appeal of the Ports Authority is the claim as to the status of the pilot in the relationship between the ship owner, the captain and the pilot.  This claim may also have ramifications as to the construction of the Pilotage Ordinance.  Therefore, we will clarify it first.  For this purpose it is appropriate to first clarify the essence of pilotage and the law that applies to it.

Pilotage

10.  Pilotage was intended to assist in the movement of vessels in narrow, closed, or winding waterways.  Vessels may end up in such a path in the course of sailing (for example in straits, a channel or river) and is bound to find itself in such a path at the beginning of its sail or at its conclusion, when it sets sail from the port or is about to anchor in it.  In fact, pilotage in a port is more common than pilotage in other places.  In many countries, including Israel, pilotage only takes place in a port.  This being the case, we will limit ourselves to pilotage in a port.

The area of a port poses before a vessel, especially a large vessel, dangers unlike those in sailing in open waters: breaking waves, shoals, palisades, wharfs, other vessels, shallow waters, low tide, and more.  The success of the maneuver which is executed in these conditions is very much dependent on recognizing the territorial and weather conditions particular to one port or another.  As a result, the permanent crew of a vessel does not have sufficient knowledge and ability to cope with the particular dangers of a given port.  In many cases, the permanent crew is also lacking sufficient knowledge as to the work patterns and rules of behavior particular to a port.  Therefore, the permanent crew requires help from a skilled agent, who has proficiency in the facts that are particular to the port.  Ostensibly, such assistance can be given to vessels as it is given to aircraft, via the transmission of data and guidance from ashore.  However, in fact, this method is not sufficient for successful pilotage of vessels.  Unlike with aircraft, which is done entirely by the crew members, navigating a ship in a port is often done with the integration of people from within the ship and outside of it: the ship’s crew; operators of tugboats which are harnessed to the ship and which lead it within the port; people on shore who assist in tying the ship and undoing the tie; and more.  The need to coordinate between all these entities, which requires special knowledge and training, with the ground conditions particular to the port and the requirement for maximum precision of the movement in it, does not enable making do with remote control of the ship.  The safety of the pilotage requires direct and close guidance and supervision.  That is the role of the pilot.  The pilot who is generally a captain, who has undergone training in pilotage, is expert in data that is particular to the port.  He stays on the ship from the moment of entry to the area of the port until it is anchored at the dock, and later from the beginning of the sail until leaving the borders of the port.  During the course of the pilotage he checks the location and speed of the ship relative to other objects in the area of the port, stationary and mobile, and guides the ship’s crew, those in the tugboat and those on shore, accordingly, as to the alignment, timing, and speed of the ship.  As to the essence of the pilotage and the roles of the pilot see further in CA 804/80 Sidaar Tanker Corporation v. Eilat-Ashkelon Pipeline Company Ltd., [1] at 410-417.

11.  Pilotage duties and the status of the pilot are regulated in various countries by an extensive system of statutory law, including special laws.  See, for example, in England, the Pilotage Act 1987.  On the other hand, in Israel, there are no more than a few statutory provisions in these matters: the Pilotage Ordinance, which deals with liability for damage caused during pilotage, and two sections of the Ports Ordinance [New Version] 5731-1971, which establish a duty of licensing of pilots (section 13) and offenses of pilots (section 53).  The rest of the matters which relate to pilotage were left to regulations.  The first topic which was regulated in the regulations, still in the Mandate period, was the duty to be assisted by pilotage services in the area of the port.  See the Haifa Port Regulations (January 7, 1933).  The regulations have been improved from time to time and were applied to additional matters.   Today, the sixth chapter of the Ports Regulations 5731-1971 is dedicated to pilotage.  This chapter includes provisions as to competence of pilots, licensing of pilots, the duty of pilotage and clearing the way for a ship in pilotage.  These provisions, like the rest of the provisions in the Ports Regulations, apply only in the realm of the Haifa Port, the Ashdod Port, and the Eilat Port.  See the definition of “port” in regulation 1 of the Ports Regulations.  The pilotage in other ports is regulated, to date, in previous regulations: Ports Regulations (Pilotage of Vessels in the Ports) 5724-1964, and Ports Regulations (Pilot Licensing) 5724-1964.  See further, as to all the ports, regulation 29 to the Addendum to the Ports Regulations (Prevention of Collisions in the Sea) 5737-1977.

The arrangement that was established in the law and the regulations as to the duty of pilotage and the status of the pilot generated criticism.  The criticism pointed to the fact that the arrangement is outdated and does not coordinate with the developments that have occurred in the field of maritime, that it leaves important questions without an answer and that as a result of the deficiencies in the legislation there is occasionally a lack of accord between law and practice.

The criticism led to the establishment of two committees for examining the law of pilotage in Israel.  The first committee was appointed by the Minister of Transportation in the mid eighties and presented a report in 1990.  It found deficiencies in the legislation which relates to pilotage, and recommended a series of amendments in various areas, including on the question of liability for damages in the course of pilotage.  It was of the view, in contrast to the existing situation, that it would be proper to establish primary arrangements as to pilotage in primary legislation.  But the recommendations of the committee were not implemented.

In 1994 the Minister of Transportation appointed a second committee to re-examine the same matter.  This committee also found various topics requiring amendment, including liability of the pilot for damages in the course of pilotage.  However, even though the committee’s recommendations were submitted to the Minister already in 1994, to date there has still not been a decision made in the Ministry of Transportation to adopt them.

The recommendations of the two committees were formulated after thorough and comprehensive work, including comparison of the laws in other countries.  They point in a clear and convincing manner to the need to change the outdated law, which has gone almost entirely unchanged for decades, and to adapt it to the situation on the ground that has developed steadily.  Freezing the law weighs down the activity in the ports and also, as the present case proves, determinations in conflicts which stem from pilotage.

The present case, which raises the question of liability for damage caused during the course of pilotage, exemplifies the need for change in the legislation.  This question should have been answered in the framework of the Pilotage Ordinance from 1939 which deals, as its name indicates, with “torts caused by ships in pilotage”.  However, in fact, the answer provided in the Ordinance to this question is partial and opaque.  The shortcomings of the Pilotage Ordinance were described in the report of the two committees which examined the issue of pilotage.  But despite the recommendations of those committees the Ordinance has not, to date, been amended.  If the recommendations had fallen on attentive ears, it probably would have simplified and shortened the proceedings in the present case.  However, as the recommendations have not been addressed, and the Pilotage Ordinance has been left unchanged, the court has been left with the task of clarifying what the Ordinance states and filling in what the Ordinance has left lacking as to liability for damage caused during the course of pilotage.

A preliminary question to this end, which has no answer in the legislation, relates to the essence of the relationship between the pilot and the captain of a ship.

Pilot and Captain

12.  Pilotage places the captain of a ship in an unusual situation.  The captain is the commander of the ship.  His authority to give orders on the ship gives him responsibility for every act and omission on the ship.  This responsibility assumes that the captain has the knowledge and ability in all areas of operation of the ship.  Therefore, he can supervise what occurs on the ship, guide the ship’s crew and prevent errors by any person operating the ship.

This presumption is corrupted in the case of pilotage.  The need for the services of an external pilot stems from the inability of the ship’s crew, including the captain, to pilot the ship independently.  As a result, a difficulty is created in subordinating the pilot to the command of the captain: since the pilot is more expert and more qualified than the captain in pilotage, whether and when is it to be required of the pilot to comply with commands given by the captain as relates to pilotage? Whether and when is it to be expected that the captain interfere in orders given by the pilot relating to pilotage?

These questions have been dealt with more than once by courts overseas.  Generally, they have avoided the extreme position which imposes responsibility for the pilotage only on the pilot or only on the captain, and have defined the relationship between the captain and the pilot as a relationship of cooperation and reciprocity.  In this type of relationship, the authority and responsibility for pilotage is divided between the captain and the pilot.  However, the authority and responsibility for pilotage are not equally divided.  The authority of the captain, and as a consequence his responsibility, need to take into consideration the priority that the pilot has in terms of the expertise that is required for pilotage.  Therefore, the authority and responsibility of the captain must be limited to unusual circumstances.  So too, the authority and responsibility of the pilot, while justified in terms of the expertise required for pilotage, must take into account the special status of the captain as the commander of the ship.  As the commander of the ship the captain has close familiarity with the ship’s crew and the ship’s systems, and it gives him information the pilot does not have as to the technical and human abilities and limitations of the ship, which may influence executing the pilotage.  Therefore the authority and responsibility of the pilot is to be limited to circumstances which do not jeopardize the command status of the captain and do not ignore the special knowledge and experience he has regarding the ship.  The right integration of the various considerations leaves the pilot a wide range of discretion in piloting the ship, and with that preserves the captain’s ability to intervene in this discretion in unusual cases, in which the behavior or decision of the pilot appear to the captain to be dangerous or especially erroneous.  In any case, even if the captain decides not to interfere in a decision made by the pilot, he still must alertly follow the pilot’s functioning, and pass on to him any information necessary to ensure that the ship’s crew fulfills the pilot’s orders and draw the pilot’s attention to any mistake in pilotage.  This was the approach of the courts in England and the United States already in the 19th century, and this is also the accepted approach in various countries in case law and legislation, until today.

(See R.P.A. Douglas & G.K.Geen, The Law of Harbours and Pilotage (London, 4th ed., 1993) 199-220[31]; A.L. Parks & E. V. Cattell, The Law of Tug, Tow and Pilotage (London, 3rd ed., 1994)[32] 1008-1010; G. Gilmore & C.L. Black The Law of Admiralty (New York, 2nd ed., 1975) [33] 597-598; C. Hill Maritime Law (London, 4th ed., 1995) [34] 512; G.C. Stephenson ‘A Pilot is a Pilot: Compulsory Pilots - Vessel Owner’s Responsibilities for Intervention and Personal Injury’ [38] 633, 635-636.)

13.  The right reserved to the captain to intervene in decisions of the pilot must be used with great restraint and care.  There are two reasons for this.  The first reason is the proficiency of the pilot.  For this reason the captain must exercise extra caution before deciding to give preference to his opinion over the opinion of the pilot, all the more so when he seeks to take the piloting reins from the pilot and pilot the ship himself.  The second reason lies in the confusion that contradictory commands sow among the ship’s crew.  A central condition for the success of the operation of the ship, including pilotage, is the certainty of the ship’s crew as to the source authorized to give commands on the ship.  Interference by the captain in the pilot’s orders may sabotage this certainty.

With that, in extreme cases, the captain’s right to intervene not only justifies his intervention but may also demand such intervention, and imposes liability on the captain for failure to intervene.

14.  Is the formula for the relationship between a captain and a pilot similar in Israel to the accepted formula in other countries?  The District Court, after examining the law and hearing evidence answered this question in the affirmative and stated as follows:

“Pilotage is placed – both by law and in fact – in the hands of the pilot, the port person, and his status is not the status of an advisor alone.  His orders are commands which the ship’s people follow while it is in pilotage.  Despite this, this status does not neutralize the status and responsibility of the captain.  The captain does not let the reins of command of the ship out of his hands, and he has in his power and in the knowledge he is favored with, enough to enable him to intervene when necessary.”

The Ports Authority, the appellant, does not accept this determination.  In its view, the pilot does not have practical authority on the ship, and only has the status of advisor to the captain.  It claims that this is the law not only in Israel but also outside of Israel.

But the Ports Authority errs as to the law outside of Israel.  In many countries, in particular in common law countries, which serve as a central source of inspiration for pilotage law in Israel, the captain and the pilot divide between them authority and responsibility for pilotage.  The Ports Authority relies, inter alia, on a report (from 1911) of a committee that was appointed in England in order to examine the subject of pilotage.  One of the recommendations of the committee was that the law define the legal relationship between the captain and the pilot in a manner that will increase the authority of the captain.  However, in contrast to the impression that the Ports Authority is creating, this recommendation was not accepted by the English legislature and was not implemented, not in the Pilotage Law of 1913 (that was legislated pursuant to the committee’s recommendations) and not in later incarnations of this law.  (See Douglas and Green, paragraph 12 supra, [31] at pp. 162, 201-203).  Moreover, even the committee in England did not seek to reach the situation the Ports Authority is headed toward, meaning expropriating control of the pilotage of the ship from the pilot.  All that was recommended was to increase the (parallel) control of the captain over the pilotage, with the goal of encouraging him to intervene in the pilotage.  (See G.K. Geen & R.P.A. Douglas, The Law of Pilotage (London, 2nd ed., 1983) [31] at 81).

Does the law in Israel deviate from the accepted approach throughout the world?  The Ports Authority hangs on to two provisions in the Ports Regulations 5731-1971, which show, in its view, that in Israel the pilot is no more than an advisor to the captain.  The first provision is in sub-regulation 47(a).  The sub-regulation established the duty of pilotage in the port:

“A captain will not bring a vessel into the port and will not remove a vessel from the port, and will not tie mooring gear or detach it and will not execute any other maneuver with a vessel in the port, unless there is a pilot on the vessel with whom he is consulting.”

The Ports Authority emphasizes “consulting”.  In its view, that is the essence of the relationship between the captain and the pilot.

The second provision is found in regulation 69.  This regulation defines the duties of the captain during mooring at the port:

“A captain of a vessel will prevent any damage that may be caused to the dock or to any other structure in the port as a consequence of pilotage, mooring, or fettering of a vessel, or during loading or unloading.”

According to the claim of the Ports Authority imposing the duty to prevent damage during pilotage on the captain alone, and not on the pilot as well, means that the pilot is not in charge of pilotage, but only assists the captain with advice.

I believe that the Ports Authority has gone too far in the conclusions it draws from the two regulations.  These regulations were not meant to regulate the relationship between the captain and the pilot.  They deal with matters which have no connection to this relationship: the duty of a ship to be assisted by a pilot (regulation 47) and the duty of care of a captain toward the port (regulation 69).  Therefore, it is not proper to build castles on these regulations regarding the relationship between the captain and the pilot.  It is to be presumed that the formulator of the regulations, if indeed he wanted to establish anything as to this question would reveal his intention in a more detailed and explicit manner.  In any event, the conclusions of the Ports Authority are not even necessitated by the regulations themselves.  Sub-regulation 47(a) which deals with the advice that the captain receives from a pilot does not rule out the possibility that this advice has binding status on the ship.  Indeed, there is nothing preventing the advice of the pilot having the character of a command, as long as the captain has decided not to make use of his (rare) authority to give a contradictory command.  As Justice Berinson explained in CA 542/73 Cargo Ships “El Yam” Ltd. v. Ports Authority [2] at 178:

“In theory, even when a ship is in pilotage the pilot is merely the advisor of the captain and the final responsibility for piloting the ship does not fall out of the captain’s hands.  In fact, during the normal course of events, he need not do more than listen to the ‘advice’ of the pilot and fulfill it.”

Justice Netanyahu said similar things in the Eilat – Ashkelon Pipeline case [1] at 406-407:

“He [the pilot] does not replace the captain but only advises him, although taking into consideration the proficiency unique to him, this is advice that is to be taken, but the captain remains responsible, and in unique and exceptional cases is entitled to act in contradiction of the advice.”

Even regulation 69 which requires the captain to prevent damage to the port’s structures, does not state that the pilot does not bear a similar duty.  The duty of a pilot to prevent such damage does not require a legislated provision, as in Israel the pilot is a port employee, and thus is required to act with care with his employer’s property.

Moreover, as opposed to the regulations presented by the Ports Authority as a sign that the pilot does not have authority in pilotage of a ship, a series of laws and regulations can be pointed to which specifically support the status of the pilot as the holder of authority on the ship.  Thus, for example, when the legislator had to, on a number of occasions, define the term “shipmaster”; he took care to exclude the pilot from the definition (which focuses on control or command of a vessel).  See section 1of the Shipping (Sailors) Law 5733-1973; Section 1 of the Import and Export Ordinance [New Version] 5739-1979; section 1 of the Addition to the Law Extending the Emergency Regulations (Supervision of Sailing Vessels) (Consolidated Version) 5733-1973; regulation 1 of the Ports Regulations 5731-1971; regulation 1 of the Prevention of Contamination of Sea Water with Oil (Implementation of the Treaty) Regulations, 5747-1987.  If the Ports Authority is correct in the claim that in any event the pilot does not have status to issue commands on a ship, why did the legislator find it necessary to exclude the pilot from the definition of a commander of a vessel?  Additional proof against the Ports Authority is found in the Shipping (Sailors) Regulations 5736-1976.  Regulation 22(a) of these regulations requires that one who serves as a shipmaster of a vessel will have certain certification.  But regulation 23 establishes an exception to this.  It says: “regulation 22(a) will not apply to the service of a pilot certified for vessels, when the vessel is required, by any law, including foreign law, to make use of his service, and the pilot has responsibility for navigating the vessel”.  This is a clear statement, which attributes to the pilot, at least if it is compulsory for him to be on the ship, responsibility for pilotage.

15.  Since the text of the legislation does not support the approach of the Ports Authority as to the status of the pilot, the question is to be asked whether there is a substantive reason which supports this approach.  The Ports Authority presents two such reasons.  First, it claims, recognition of the authority and responsibility of the pilot weakens the willingness of the captain to take precautionary measures during the pilotage and thereby increases the danger posed by the pilotage.  I do not accept this claim.  As has already been said, the authority and responsibility of the pilot do not come at the expense of the authority and responsibility of the captain, but only complement it.  The captain, even when he brings a pilot aboard the ship, does not absolve himself of any duty of care which generally applies to the shipmaster of a ship, including the duty to monitor orders coming from the pilot and the duty to examine the degree of accord of the orders with the reality on the ground.  The captain who is assisted by a pilot also does not absolve himself of the duty to intervene in a particularly dangerous or clearly erroneous decision of the pilot.  Indeed, recognition of the authority and responsibility of the pilot may discourage the captain from intervening in borderline cases, when he is not convinced of the error of the pilot.  But, such discouragement is intended and welcome, in light of the professional advantage of the pilot over the captain in all that relates to pilotage.  See paragraph 12 supra.

The second reason is the fear of creating dual authority over the ship.  Dual authority brings on contradictory commands, and contradictory commands destroy the certainty and discipline on the ship.  However, the solution that the Ports Authority provides to prevent splitting the authority, meaning, denying the pilot’s authority, is not the only solution to be considered.  Another possible solution is limiting the (residual) authority of the captain.  Such limitation prevents contradictory commands during the routine course of pilotage, and at the same time ensures the intervention of the captain in exceptional cases, when the proximity or magnitude of the danger justifies the price entailed in contradictory commands.  This solution is preferable to the solution of the Ports Authority, as it gives weight to the proficiency of the pilot and enables gleaning from it the maximum benefit during the normal course of events.

16.  In conclusion, in Israel, as in other countries, the pilot, in particular if his services are imposed on the ship, is not just an advisor to the captain.  He carries operational authority as to pilotage.  The orders he gives obligate the ship’s crew.  Excluding exceptional cases, they also obligate the captain.  This being the case, the pilot bears responsibility for pilotage.  This responsibility obligates him to execute the pilotage with care.  The responsibility of the pilot does not stand alone.  Alongside it there is the responsibility of the captain.  This responsibility stems from the roles placed on the captain during the course of pilotage: to assist the pilot, to ensure that his orders are implemented, and to intervene in his decisions if they display special danger.  The captain also must fulfill these roles with care.

17.  The roles that are imposed during the course of pilotage, on the pilot on the one hand and the captain on the other hand, and in any case distribution of responsibility which is derived from these roles, do not necessarily match the degree of liability of the captain and the pilot for damage caused as a consequence of pilotage.  In the area of pilotage, the translation of authority and responsibility to liability in torts is not simple, as the distribution of liability in torts involves additional considerations, which are not tied to the division of roles among those causing the damage.  It would have been possible, in order to understand the significance of these considerations to hold a separate hearing on the question of the relative liability of the pilot and the captain.  However the Pilotage Ordinance, which is a central source in Israel for establishing liability as a consequence of pilotage, does not take that route.  It regulates the liability of the captain together with the liability of the ship owner, and imposes on both of them equal degrees of liability.  The reason for this is rooted, it appears, in the vicarious liability of the ship owner for the actions of the captain.  Since the liability is routed, in the end, to the ship owner, it is preferable to examine the distribution of liability from the perspective of the relationship between the pilot and the ship owner.  We will now turn to that question.

Pilot and Ship Owner

18.  The ship owner, as distinguished from the captain, is not on the ship at the time of pilotage, and does not have the necessary proficiency to execute the pilotage. Therefore, according to the general law, it is not possible to hold the ship owner personally liable for torts which occur during the course of the pilotage.  On the other hand, the ship owner is the captain’s employer, and therefore has vicarious liability for torts that the captain carries out during the course of his employment.  See section 13 of the Torts Ordinance [New Version].  See also section 36 Shipping (Sailors) Law 5733-1973.  However, does the ship owner also have vicarious liability for torts carried out by the pilot?

Vicarious liability, according to the Torts Ordinance, is conditioned on the existence of an employment relationship or agency relationship between the tortfeasor and the one on whom liability is being imposed.  See sections 13-14 of the Ordinance; CA 502/78 State of Israel v. Nisim [3] at 753-754.  Does such a relationship exist between the ship owner and the pilot?  When this question is examined against the background of the Torts Ordinance, we find the Ordinance relates differently to the two types of pilots: on the one hand, a pilot whose services the ship owner, himself or via the captain, uses on his own initiative or by his own free will (hereinafter – “voluntary pilot”); and on the other hand a pilot whose services the ship owner is required to use, and has no control over the choice of the pilot (hereinafter – “compulsory pilot”).  The difference in relating to the two types of pilots is expressed in section 13(a)(2)(b) of the ordinance which absolves “one who was forced by law to use the services of a person the choice of whom  is not given to him” from liability for the act or omission of that person.  The language of the section is clearly limited to a compulsory worker and this includes a compulsory pilot, and does not encompass a voluntary pilot.  The legislative history of the section points to the fact that its purpose was to apply the common law rule that absolves ship owners from vicarious liability for a compulsory pilot, in Israel.  (See G. Tedeschi ‘Employer Immunity and the Liability of the Employee’, [25] at 94-96). Indeed, today, such immunity, which stems from the common law, is given to ship owners in the United States.  (See Parks & Cattell [32](supra paragraph 12) at pp. 1023-1025; Gilmore & Black [33] (supra paragraph 12), at p. 520; 70 Am. Jur. 2d sec. 443 (1987) [39]).

Were section 13(a)(2)(b) of the Torts Ordinance to stand alone, it would, in accordance with a construction based on its text and purpose, be sufficient to almost entirely preclude the attribution of vicarious liability to ship owners for acts and omissions of pilots.  This is so, because pilotage in Israel is primarily carried out based on a duty imposed in regulation 47 of the Ports Regulations 5731-1971 and the identity of the pilot is determined by the Ports Authority, the pilot’s employer.  However, section 13(a)(2)(b) is not the only piece of legislation which deals with vicarious liability of a ship owner for the pilot.  Another piece of legislation on the same matter is the Pilotage Ordinance.  The Pilotage Ordinance obligates the ship owner (together with the captain) to pay for damage caused during the course of the pilotage of the Ship, even if the pilotage was compulsory.  This obligation appears in section 2 of the Ordinance, which says as follows:

“Despite all that is said in any Ottoman law, or in any other law or ordinance, the owners or the captain of any ship in pilotage, whether the pilotage is by compulsion or whether in another way, will be responsible for all loss or damage caused by the ship or by an error in driving the ship.”

This provision, according to its opening text, establishes an exception to the regular law that should have applied to the liability of the ship owner for damages caused in pilotage.  It also places vicarious liability on the ship owner for a tort caused by a compulsory pilot, although the regular tort law does not recognize such responsibility.  Moreover, in 1939, when the Pilotage Ordinance was passed, the liability it placed on the ship owner and the captain was an innovation, not only for a compulsory pilot, but also for a voluntary pilot.  The explanation for this was that, until 1947, which is the year of commencement of the Torts Ordinance, tort law (which was based on the Magella) did not recognize the principle of vicarious liability, and as a result vicarious liability could not be attributed to the ship owner even for a tort of a voluntary pilot.  Imposing such vicarious liability required a special law, and the Pilotage Ordinance in fact created this law, without distinguishing between a compulsory pilot and a voluntary pilot, “regardless of what is said in any Ottoman law or any other law or any other ordinance.”  This intention of the Pilotage Ordinance also emerges clearly from the explanatory notes to the proposed ordinance (Palestine Gazette 867 (16) p. 146) which state as follows:

“The ordinance was passed in order to also apply to cases where the guidance [meaning pilotage] is not compulsory, as in Palestine (the Land of Israel) the principle of ‘transferring responsibility to another’ according to which the ship owner or its captain is responsible for the act of the guide [pilot] is not recognized as there is not an explicit law to this end here.”

In the continuation of the explanatory notes it is stated that the ordinance is based on section 15 of the English Pilotage Law of 1913, which was in force at the time.  And so, this section as well, according to its text as well as its legislative history, imposes vicarious liability for acts and omissions of a compulsory pilot on a ship owner: prior to the legislation of the article (in the year 1913) it was not possible to attribute to the ship owner anything other than vicarious liability for torts of a voluntary pilot, and the owners were immune from liability for the torts of a compulsory pilot.  This immunity caused significant difficulties, and weighed heavily upon both the execution of the pilotage and managing legal proceedings related to pilotage.  Due to these difficulties various countries agreed in 1910, in the Brussels International Convention for the Unification of Certain Rules with Respect to Collision of Vessels (of 1910) to rescind this immunity (article 5 of the treaty).  A year later a national committee in England decided to adopt the approach of the treaty and change the pilotage law in England accordingly.  This recommendation was adopted in section 15(1) of the Pilotage Law of 1913, which came into force in 1918.  In accordance with the recommendation of the committee, the amendment of the law did not have the intention of imposing on the ship owner personal liability for the damage caused in pilotage, but only to rescind the immunity that owners had from vicarious liability for a compulsory pilot.  The text of the amendment clearly reflects this intent, as it only equalizes, as to owner liability, compulsory pilotage to non-compulsory pilotage.

“... the owner or master of a vessel navigating under circumstances in which pilotage is compulsory shall be answerable for any loss or damage caused by the vessel or by any fault of the navigation of the vessel in the same manner as he would if pilotage were not compulsory.”

Indeed this is also how the courts in England, including the House of Lords, understood section 15(1) of the law from the year 1913.  (See Workington Harbour and Dock Board v. Towerfield  (Owners) [1950] 2 All. E. R. 414 at 433-432 (hereinafter: “Towerfield ”)[21];  The Esso Bernicia [1989] [22] at 58-60; a similar approach was taken by the Supreme Court of Australia, when it interpreted the relevant local law, which is phrased (with minor changes which are not substantive) like section 15(1) of the English law.  (See Oceanic Crest Shipping Co. v. Pilbara Harbour Services Pty. Ltd. [23] at 644-645, 684-685).

Since the Mandatory Pilotage Ordinance was based, as the proposed ordinance shows us, on section 15(1) of the English law, there is an additional reason to see in this ordinance, as the courts in England saw in section 15(1), a source for vicarious liability of a ship owner for the tort of a pilot, even where he is a compulsory pilot.  This conclusion has two glaring consequences.  The first consequence is that the liability of the ship owner is conditioned upon the existence of liability on the part of the pilot.  This consequence stems from the essence of vicarious liability, which does not form until after the personal liability of the employee or the agent has formed.  [See CA 360/80 Michon LeMateh Ltd. v. Karnit-Fund for Compensation of Victims of Road Accidents [4] at 387; A. Barak, Vicarious Liability in Tort Law (1964)[24] 71.]  The second consequence is that the liability of the ship owner does not cancel and does not reduce the liability of the pilot toward the injured party, but is only added to it.  This consequence stems from section 11 of the Torts Ordinance, according to which the tortfeasor and the one bearing vicarious liability for the tortfeasor are seen as two who “are jointly liable for the same act as joint tortfeasors and can be sued for it jointly or severally.”  (See CA 22/75 Edri v. Azizian [5] at 707-709; CA 502/78 [3](supra) at p. 761).

19.  It can be said that the Pilotage Ordinance imposes on the ship owner vicarious liability for the tort of a compulsory pilot, even if the pilot is considered for this purpose a compulsory employee of the ship owner.  If this is so, the Pilotage Ordinance, being a specific law, establishes an exception to the provision in section 13(a)(2)(b) of the Torts Ordinance, which is a general law.  It is also possible to say that the vicarious liability of the ship owner for the tort of the pilot, by authority of the Pilotage Ordinance, is liability for the tort of an agent as opposed to an employee.  If so, such liability is consistent with the provision in section 14 of the Torts Ordinance, which establishes vicarious liability of a principal for the tort of an agent, and does not exclude a compulsory agent from the rule.  It appears that it is preferable, from among the two possibilities, to regard the pilot, for the purpose of the vicarious liability of the ship owner, as the agent of the ship owner and not the employee of the ship owner.

The El Yam Ruling

20.  In opposition to the conclusion which stems from that which is said above that the Pilotage Ordinance imposes on the ship owner vicarious liability for the tort of the pilot, there is the judgment of this court in CA 542/73 Cargo Ships “El Yam”  Ltd. v. The Ports Authority [6] (hereinafter – “El Yam”).  In the El Yam case the Supreme Court dismissed the approach as to the vicarious liability of the ship owner, and ruled that the Pilotage Ordinance imposes on the ship owner absolute (personal) liability for any damage caused in pilotage.  In that case the ship owner was sued to compensate the Ports Authority and the insurer of the Authority for damage that the ship caused during pilotage to a barge which belonged to the Authority.  The ship owner sent a third party notice to the pilot as the cause of the damage, and to the Ports Authority as the employer of the pilot.  The District Court, and following it the Supreme Court, presumed that the barge was not damaged due to the negligence of the ship’s owner, the captain or the pilot.  Without fault on which to base the cause of action for the suit it was necessary, ostensibly, to dismiss the suit.  However, despite this, the court allowed the suit.  It saw in the Pilotage Ordinance a source for the liability of the ship owner even without fault on the part of the ship’s crew or the pilot.  Justice Witkon, who wrote the main opinion, was aware of the fact that it is not necessary to interpret the Pilotage Ordinance in this way.  He presented and analyzed (at pp. 175-177) the history of the Ordinance as well as the different interpretation that the parallel provision in England received, according to which there is no more in the law than attribution of vicarious liability.  He even noted (at p. 177) that “I would therefore say that until now I would tend to accept the claim of the ship owner that the liability is not absolute but only vicarious”.  However, this interim conclusion did not remain the final conclusion of the judgment.  It was decided on the basis of another rationale which supports the opposing interpretation that Justice Witkon chose to prefer “not without hesitation”.  And what is the rationale?  That the phrasing of the Pilotage Ordinance (“responsible for any loss or damage”) is very similar to another statutory provision in England that regulates the liability for damages that a ship causes to the structures of the port: section 74 of the Harbours, Docks and Piers Clauses Act, 1847.  That provision was interpreted in English case law as imposing on the ship owner strict liability for the damages to the port, even without fault.  Lacking a hint in the language of the Pilotage Ordinance to the distinction between the liability established in it and the liability established in the English law of 1847, Justice Witkon preferred to compare the Ordinance to the English law, and to also see the Ordinance as imposing strict liability that does not require fault.  Justices Berinson and Kister agreed with Justice Witkon.  Justice Berinson admitted (at pp. 178-179) that the result of the judgment is “unusual” and may “occasionally bring about strange results”.  He also was willing to presume that this result does not reflect the original intent of the legislator of the Pilotage Ordinance.  Despite all this he decided to join the interpretation of Justice Witkon, for its accord with the language of the Ordinance, and taking into account the fact that it does not lead to a complete absurdity.

The ship’s owner, who was held liable for the damage caused to the barge, petitioned for a further hearing on the judgment.  President Agranat denied the petition: FH 38/75 Cargo Ships “El Yam” Ltd. v. the Ports Authority [7].  He too was of the opinion that the interpretation that was given in the judgment to the Pilotage Ordinance is anchored in the text of the ordinance and was justified given the background of the English law from the year 1847.

It is worth noting that the historical tie and the textual similarity between the Pilotage Ordinance and section 15 of the English pilotage law from the year 1913 do not enable the reconciliation of the judgment in the El Yam case and English case law, which interpreted section 15 only as a source of vicarious liability.  (See paragraph 18 supra).  Indeed, Justice Witkon related (at p. 178) to the Pilotage Ordinance and to section 15 in one breath, and his determination as to the similarity to the English law from the year 1847 is applicable to the Pilotage Ordinance and section 15 equally.  It turns out, therefore, that the judgment in the El Yam case also challenges the interpretation that was given by the House of Lords in England to section 15 of the English pilotage law.

Criticism of the Ruling

21.  The ruling that was made in the El Yam case generated criticism.  The criticism also came from this court: CA 804/80 Sidaar Tanker Corporation v. Eilat-Ashkelon Pipeline Company Ltd. [1] (hereinafter: “Eilat-Ashkelon Pipeline Company”).  A company that held the rights to run the oil port in Ashkelon sued the owners and the operator of a ship for damage caused by the ship, with a pilot on board, to the port’s structures.  This suit relied, inter alia, on the cause of action that was recognized in the El Yam case, meaning, the personal and strict liability of the ship owners in pilotage according to the Pilotage Ordinance.  Use of this cause of action raised the question of the defenses which defendants have against such a suit.  Since this question arose following the ruling in the El Yam case, which brought the law of strict liability of ship owners into the world, the Supreme Court considered it appropriate to precede and clarify this ruling.  It did so as it had doubts as to the correctness of the ruling.  In light of these doubts the panel of justices was expanded, and the parties, to which the Attorney General was joined, were invited to argue before the expanded panel on the question whether this ruling was to be deviated from.  However, by the time the moment of decision on this question arrived, the original parties approached the Court and informed it that they were willing, for the purpose of resolving the appeal, to view the ruling in the El Yam case as binding.  The Court adopted this agreement, and presumed as well, for the purpose of that case, that the ruling stands as is.  On the basis of this presumption the court ruled that the strict liability does not deny the ship owner the defenses which are available to any person causing damage according to the Torts Ordinance.  However, the court did not make do with this.  It considered it appropriate, beyond that which was necessary, to point to the difficulties that the ruling in the El Yam case raises.  Justice Netanyahu presented a number of queries as to the ruling, both in term of the substantive perspective and the historical perspective, and summarized (at p. 405) as follows:

“All these are questions of rationale, and all that I can answer is just this, that the text of the ordinance appeared to the judges who ruled in said CA 542/73 [2] so clear and unequivocal such that they preferred its literal interpretation as imposing a strict liability in light of the English case law as to section 74, although, as the hon. Justice Berinson has shown. . .  this brings about strange results. . .  this ruling prefers the literal interpretation not only over the historical interpretation but also over the interpretation according to the legislative aim.”

See also her words continued at p. 422-423.

Justice Barak also did not spare criticism from the ruling in the El Yam case.  He noted (at p. 427) that the result that emerges

“is surprising, as generally in the shipping world the principle is followed according to which the liability (at least in a collision between ships) is based on fault, and only in exceptional cases (such as damage to public ports) is this deviated from. . .  The Supreme Court was aware of the fact that its approach may ‘occasionally lead to strange results’    . . .  and contain some confusion but considered itself compelled to reach this result, as ‘when the text itself is sufficiently clear, we can do no more than apply the law as is and allow the Israeli legislator to straighten things out if and to the extent that they are not pleased with it. . .  For myself I am of the opinion that it is not to be said that the text is clear, if it does not fulfill a goal that was made clear to the interpreter.”

Later Justice Barak explained the unreasonableness in the distinction that the ruling in the El Yam case creates between a ship which does damage during the course of pilotage and a ship that does damage outside of the course of pilotage.  He added:

“Indeed, the interpretation of the Supreme Court in CA 542/73 [2] is a difficult one. . .  It is to be hoped that a way will be found to repair the situation, whether by way of changing case law or by way of legislation.  Of the two, the latter is preferable, which can take account of special situations that require special regulation.”

This call, inasmuch as it was directed at the legislature, did not bear fruit.  See supra paragraph 11.  To date, there has not been before this court a good opportunity to re-examine the continued validity of the ruling in the El Yam case.  This being so, this ruling is still valid.  From time to time it created difficulties before the courts, but in all cases the case law has managed, in one way or another, to overcome the strict liability and, in addition, impose liability on one who is not the ship owner, while leaving the ruling intact.  See CA 817/81 Ports Authority in Israel v. Zeno [7](hereinafter – “Zeno”): the strict liability according to the Ordinance does not prevent the owners of the ship from suing the Ports Authority and the Pilot for participation in the compensation that the owners were obligated to pay the third party that suffered damage from the ship; CC(Haifa) 786/87 Zim v. Ports Authority [17]: the strict liability according to the Ordinance does not rule out a suit by the ship owner against the pilot and his employer for damage that was caused to the ship in pilotage as a result of the negligence of the pilot.  In the judgment the subject of this appeal as well, the District Court was able to bypass the ruling in the El Yam case: it saw in strict liability, which is imposed according to the ruling in the framework of the Pilotage Ordinance, an additional but not exclusive cause of action that the damage gives rise to.  On the basis of this determination the District Court saw nothing to prevent the injured party (in this case the Ship) basing its suit against the tortfeasor (in this case the pilot and his employer) on a general tort in accordance with the Torts Ordinance (in this case the tort of negligence).  See paragraph 5 supra.

22.  In theory, the rationale of the District Court in this case, if it is correct, makes the need to examine the ruling in the El Yam case superfluous in this instance as well.  However, Zim, the respondent in this appeal, while it supports the rationale of the District Court, does not miss out on the opportunity that has been created to examine the ruling.  It claims that this court, as opposed to the District Court, has a better rationale for reaching the same conclusion that was reached by the District Court.  How so? While the District Court was compelled to give deference to the ruling in the El Yam case, and therefore was forced to give a limiting interpretation, in a manner that does not block causes of action outside of the Pilotage Ordinance; on the other hand, this court does not have to pave its way between the challenges created by the ruling, but can eliminate the ruling from the road.  This, according to Zim’s claim, is how the Court should rule.  If this would occur, and the liability of the ship owner and the captain according to the Pilotage Ordinance will be as it was meant to be, vicarious liability for the pilot, it will no longer be necessary to invest efforts in order to bypass strict liability.  The road to a suit by a ship owner against the pilot will then be paved and simple, like in any torts lawsuit of an employer or principal against an employee or an agent that caused damage.

A Change in the Ruling

23.  Indeed, in my view, it would be appropriate for this court to take the path suggested by Zim.  The ruling in the El Yam case was made some time ago.  Already then the court noted that the path of historical construction of the Pilotage Ordinance, which apparently reflects the legislator’s intent, leads to a different ruling, meaning, that the responsibility imposed according to this ordinance on the owners and the captain of the Ship is not strict liability but vicarious liability for the pilot.  Despite this the court preferred a literal interpretation which led it to impose strict liability.  The court was aware that strict liability is “an unusual result” and that it may “at times lead to strange results”.  And the court even presented these results explicitly.  However, as the Court said, in the words of Justice Berinson (p. 179) “if the legislator chose to use a text whose literal translation is strict liability, and it is not entirely absurd, I am of the opinion that we must give it force.”  See supra paragraph 20.

Ten years later, in the Eilat Ashkelon Pipeline Company case, the Supreme Court was willing to re-examine the validity of the ruling in El Yam.  The panel of the court was even expanded for this purpose.  In the end, the court did not examine the ruling as the parties expressed their willingness to accept the ruling as binding law.  Despite this, the court did not refrain from sharp criticism of the ruling, and even recommended amending the law.  See supra paragraph 21.  Since then more than fifteen years have passed and the law has remained as it was.

Two government committees were appointed by the Minister of Transportation to examine the law in this matter: the first submitted a report in 1990; the second – in 1994.  The two committees recommended changing the existing law regarding the damage caused during the course of pilotage.  The recommendations of both committees have remained as unturned stones until today.  See supra paragraph 11.

This time as well the court decided to expand the panel in the appeal.  Indeed, the time has come to deal head-on with the criticism that has been voiced against the ruling in the El Yam case, including by this Court, and to examine this law at its core.  Indeed, for just such a situation as this, the legislator exempted the Supreme Court from the principle of binding precedent.

24.  The essence of the criticism that has been voiced against the ruling in the El Yam case relates to the results that stem from the ruling.  Already in the El Yam case Justice Berinson said that this ruling may lead to strange results.  That would be an understatement.  The ruling leads to inappropriate results.  Here, for example, are a number of results that stem from the strict liability that was imposed in the El Yam case on the owners and the captain of the ship for any damage caused by the ship during the course of pilotage.

First, strict liability such as this creates a dissonance between the law in Israel and the law in the rest of the world.  It is an established rule in the maritime law of other countries, that liability for damage in which a ship is involved (apart from damage to port structures) is determined by the fault principle.  (See Gilmore & Black (supra paragraph 12) [33] at p. 486; T.J Schoenbaum Admiralty and Maritime Law (Minnesota, 2nd ed., 1994) [36] at 714; Marsden, On Collisions at Sea (London, 12th ed., by S. Gault, 1997) [37] at 61-62).

Second, strict liability creates a distortion within the law in Israel.  It is more severe, without good reason, specifically with the owners and the captain of a ship that is in pilotage.  As for a ship that is not in pilotage, the law for the owners and captain is equal, in principle, to the law for any tortfeasor, whose liability is limited to the damage caused as a result of personal fault (in the category of negligence or in another category).  Indeed, liability in torts generally requires fault.  (See I. Englard ‘Half a Jubilee to the Civil Torts Ordinance – Problems and Trends’ [26] at 572; D. Freedman ‘The Law of Property and the Law of Fault’ [27] at 241.)  What is the justification for deviating from this principle specifically when the ship is piloting its way in the port with the assistance of an external pilot?  In order to answer this question it is necessary to turn to the considerations which normally justify liability without fault in torts: creating an unusual risk; a special need for deterrence; possibility of distributing damage using insurance; insufficient economic capacity of the person at fault for causing the damage; and the like.  (See I. Gilad ‘Forty Years of Israeli Law – Chapters in Tort Law’ [28] at 649-650; D. Mor ‘Liability for Defective Products – Policy Considerations’ [29] at 78).  However, these considerations cannot support distinguishing between a ship in pilotage and a ship in another situation.  The pilotage does not create an unusual risk, but in fact reduces the risk that arises from the ship’s presence in the area of the port.  The pilotage also does not change the situation in terms of insurance, as the circle of those potentially suffering damage from a ship in pilotage is similar to such a circle from a ship that is not in pilotage.  Considerations of prevention and deterrence also do not justify relinquishing the fault requirement: the level of care of the pilot, which is a central tier in the safety of pilotage, will not increase as a result of imposing strict liability  on the owners and the captain.  On the other hand, the level of care of the captain during the course of pilotage which is expressed in the level of his supervision over the functioning of the pilot, will not be reduced if there is imposed on him (and on the ship owner) only vicarious liability for the pilot’s actions.  Such vicarious liability provides sufficient security as well for the payment of compensation, as it frees the person suffering the damage from the dependence on the economic capacity of the pilot.  Therefore, deterrence and collection needs also do not justify imposing strict liability on the owners and the captain.

Third, strict liability is not justified even according to the English law which the court relied on in the El Yam case.  Indeed section 74 of the English law of 1847 imposes on the owners of a ship strict liability for any damage to a port’s structures.  See supra paragraph 20.  However, this unusual liability was established by the English law in order to provide special protection to the port which serves the public.  Therefore, even if we presume that it is appropriate to adopt such liability in Israel, despite the absence of a law equivalent to the English law of 1847, the liability should have been limited to the circumstances in which it applies in England, meaning, the damage that the ship caused to a structure in the port.  But the court in Israel broadened the strict liability to any type of damage caused by a ship in pilotage in any location.

This is only a partial list of inappropriate results which stem from the ruling in El Yam.  (See further in the El Yam case, pp. 178-179, and the Eilat Ashkelon Pipeline Company case, at pp. 405, 427, 444).

25.  These results are not a decree from above.  They are not even a decree from the legislator.  The legislator of the Mandate period, as stated, did not intend to impose strict liability in the Pilotage Ordinance, but rather, as in the parallel English law of 1913, to impose vicarious liability.  See supra paragraph 18.  The court in El Yam also admitted this.  However, it preferred to rule in accordance with a literal interpretation, as though the text of the Ordinance left it no choice.

This is surprising.  As already in those days, years ago, the court was not enslaved to literal interpretation.  Generally, it avoided to the best of its ability a literal interpretation when such interpretation led it to a substantively inferior result.  In particular when the text of the law was not unambiguous.  And here, the text of the Pilotage Ordinance on the question of strict liability is not unambiguous: the Ordinance does not explicitly state that it imposes strict liability.  See the version of the Ordinance supra paragraph 1.  Even the English source, from which the court drew the strict liability, is not unambiguous.  It is true, as the court noted that the House of Lords interpreted section 74 of the English law of 1847, which uses language similar to the language of the Pilotage Ordinance, in such a way that creates strict liability.  See the Towerfield case, supra paragraph 18.  However, even the House of Lords did not adhere to this interpretation.  In the same judgment it interpreted the same language, this time in section 15 of the Pilotage Law of 1913, in a manner that creates vicarious liability and not strict liability.  (See Ibid.)  The House of Lords proved thereby that the language tolerates vicarious liability or strict liability in equal measure.  What, if so, led the court in the El Yam case to specifically impose strict liability?  It is possible that the reason is that in the El Yam case no fault was proven on the part of the pilot, the captain or the owners of the ship that caused the damage.  See paragraph 20 supra.  In such a situation, in which there was no fault on which to hang the damage, vicarious liability was not sufficient to compensate the person suffering the damage.  It is possible, therefore, that the desire to compensate the injured party is what influenced the court in the El Yam case, in a conscious or unconscious manner, to choose the path of strict liability.

However, whether or not this is the case, the ruling in the El Yam case has been perceived as a sweeping law that imposes strict liability on the ship owner and the captain in general, even when there is fault, including when there is fault on the part of the pilot.  (See Eilat Ashkelon Pipeline Company case and the Zeno case, supra paragraph 21.)  This broad conception is the source of the problem.  And what is the solution to the problem?

26.  As is known, over the years a change has occurred in the interpretive policy of the Court.  The keystone of construction, for some time now, is not literal construction but purposive construction.  Meaning, to the extent allowed by the text of the law, the Court strives to interpret the law in such a manner that will advance the purpose of the law.  The purpose of the law is to establish a good and logical rule, according to the matter under consideration, which will integrate with the broader network of legal rules and social values.  It is also proper to interpret the Pilotage Ordinance accordingly.

If so, then what is the proper interpretation of the Pilotage Ordinance?  The history of this ordinance teaches us clearly that the intent of the Ordinance, as was the intent of the parallel English law from 1913, was to impose liability for the fault of the pilot on the owners and the captain of the ship as vicarious liability.  This and no more. There is nothing in the history of the English law or the Pilotage Ordinance which justifies imposing strict liability on the owners and the captain even in the absence of fault.  See paragraph 18 supra.  Moreover, the strict liability is also not justified from other aspects.  It is not justified from the aspect of the purpose of the Ordinance, it leads to strange, if not inappropriate, results, and it is not consistent with the accepted rules as to liability for damage in similar contexts.  See paragraph 24 supra.  Therefore, there is no reason to say that the Pilotage Ordinance imposes strict liability on the owners or the captain for damage caused in the course of pilotage. It imposes vicarious liability on them and that is all.

However, it is to be asked whether this conclusion is consistent with the language of the Pilotage Ordinance which imposes dual liability: first, liability “for any loss or damage caused by the vessel” (hereinafter – “the first paragraph”); second, liability for “any loss or damage caused . . .  by an error in the navigation of the vessel” (hereinafter – the “second paragraph”)?  The second paragraph speaks explicitly of damage caused as a result of fault, while the first paragraph speaks in broad language of any damage, and not necessarily damage caused as a result of fault.  Is it to be concluded from this that there is also a difference in the law as to the liability imposed on the owners and the captain, between damage caused as a result of fault in driving the ship (in which case vicarious liability is imposed) and damage caused without such fault (in which case strict liability is imposed)?  The answer is negative, as the history of the Ordinance is one, as is the purpose and they lead to one clear conclusion: that the intent of the Ordinance is to impose only vicarious liability.  However, if this is so, what is the explanation and what is the reason for the existence of two paragraphs one next to the other?  The answer is that the dual language of the Pilotage Ordinance was copied from the dual language of the parallel law in England, meaning section 15 of the English Pilotage Law of 1913.  And here, the courts in England, which interpreted the liability according to section 15 of the Pilotage Law as vicarious liability only, applied this interpretation not only to the second paragraph in this section  (“for any loss or damage caused. . . by any fault of the navigation of the vessel”) which parallels the second paragraph in the Pilotage Ordinance, but also to the first paragraph in the section (“for any loss or damage caused by the vessel”), which parallels the first paragraph in the Pilotage Ordinance.  See the language of the section and the interpretation of the section supra paragraph 18.  Meaning, the dual language, as it was interpreted by the courts in England, is none other than a matter of format, which was intended to clarify or generalize, and not a matter of substance, and in any event it was not meant to distinguish between strict liability in one paragraph and vicarious liability in the second paragraph.  Such is the law in England.  There is no basis to presume that the legislator of the Mandate period, who copied the language from England, intended a different interpretation.  Therefore, this is also the law in Israel.  The conclusion is that absent personal liability for the damage on the part of the pilot or on the part of another person on the ship’s crew, there also is not vicarious liability of the owners or the captain of the ship and the Pilotage Ordinance does not impose any other liability on them.

It is worth noting that this conclusion is consistent with the judgment handed down by this court ten years before the ruling was made in the El Yam case: CA 469/64 Shiphart and Eskorant Genelsheft, A Ross and Kwo v. the Ports Authority in Israel [8] at 216-217.

27.  This being so, in conclusion, the Pilotage Ordinance, according to its original intention at the time and according to its correct meaning today, does not impose on the owners and on the captain of the Ship strict liability, as was ruled many years ago in the El Yam case, but only vicarious liability.  And it is one and the same whether, as in the language of the Ordinance, the damage was caused “by the vessel or by an error in the navigation of the vessel”.  This is the law from here on in.

This being so, what is the inherent benefit in the Pilotage Ordinance?  When the Pilotage Ordinance was passed, in 1939, it not only contained benefit it contained innovation.  The innovation, which was copied from the English law, was in the very idea of vicarious liability, which was absorbed as a general principle in the Land of Israel only eight years later, with the coming into force of the Torts Ordinance in 1947.  However, since then, of course, this innovation has dissipated.  What, then, is left today of the Pilotage Ordinance.

The Pilotage Ordinance still has benefit.  As according to section 13(a)(2)(b) of the Torts Ordinance, vicarious liability is not imposed on an employer “who was forced by law to use the services of a person the choice of whom  is not given to him.”  While the Pilotage Ordinance also imposes on the ship owner vicarious liability for damage caused by a compulsory pilot.

28.  Subsequent to all of this, what is the result that emerges from this ruling in the case before us?  In the case before us it is agreed that the pilot was negligent.  Zim can sue the pilot for his negligence.  For this purpose the Torts Ordinance is sufficient, and there is no need for the Pilotage Ordinance.  However, Zim, of course, does not make do with the personal liability of the pilot.  It wishes to impose liability on the Ports Authority as well, by force of the vicarious liability of the Authority for the pilot.  This being so, the question arises whether the Ports Authority can defend itself from Zim’s lawsuit, with the claim that Zim itself bears vicarious liability for the negligence of the pilot.  At this stage, therefore, the question of the vicarious liability of Zim for the negligence of the pilot according to section 2 of the Pilotage Ordinance, enters the picture.

But, prior to examining the question of the vicarious liability of Zim for the negligence of the pilot, it is appropriate to clarify the question of the relationship between the pilot and the Ports Authority.  Does this relationship produce vicarious liability of the Ports Authority for the negligence of the pilot?

The Pilot and the Ports Authority

29.  All agree that the pilot, when he was navigating the Ship, was an employee of the Ports Authority: he was bound to it by an employment contract, was integrated in its operations, received a salary and benefit from it, executed the pilotage with equipment supplied by it, and so on as to signs indicating an employment relationship.  The status of the pilot as an employee of the Ports Authority even received recognition in the Ports Regulations 1971: they define (in regulation 37) the representative of the Ports Authority as an “employer” of the pilot in the ports of which the Authority is in charge.  However, the existence of an employment relationship, in the standard sense, is not a sufficient condition, nor a necessary condition, for the existence of vicarious liability according to section 13 of the Torts Ordinance.  In order for vicarious liability to exist, it is necessary that the tortfeasor be an “employee” of the liable one, in the unique sense attributed to this term in the ordinance.  This sense requires, in accordance with the definition in section 2 of the ordinance, “complete control” of the employer as to the manner in which the employee conducts the work for him.  As to the complete control test see, for example, CA 582/71 National Insurance Institute v. the Ports Authority [9] at 654-656; CA 502/78 State of Israel v. Nisim [3] 758-759.  The Ports Authority claims that according to this test it does not bear vicarious liability for the pilot.  And why? Because the pilot is subject, when he is executing the pilotage, to the control of the captain, as to the manner of execution, and in any case the Ports Authority, as the permanent employer of the pilot, does not have “complete control” of the execution of the pilotage.  The Ports Authority supports this claim with references from other legal systems, which refused to recognize vicarious liability of the authority in charge of the port for the torts of a pilot, even where he was compulsory.

As did the Ports Authority, I too will discuss this claim in two stages.  In the first stage I will examine the result that arises from the Torts Ordinance.  After that I will examine the well-known impact of comparative law on this result.

30.  As stated, the Ports Authority claims that it does not have “complete control” of the pilot, as is required by the Torts Ordinance, in order to formulate vicarious liability of an employer for an employee.  I do not accept this claim.  Let us presume, for the purposes of this discussion, that the captain has no authority over pilotage, and that the pilot controls the pilotage exclusively.   In this situation is vicarious liability imposed on the Ports Authority for the damage that the pilot caused during pilotage?  According to the logic of the Authority, the answer must be in the negative, as the authority does not have control, not even partial control, of the decisions the pilot makes during pilotage.  Indeed, the Authority is entitled, and at times even must, draw conclusions against a pilot who shows lack of care, including ceasing to employ him or filing a complaint against him to the Pilot Licensing Committee, which was established in accordance with the sixth chapter of the Ports Regulations 5731-1971.  However, it does not have authority to intervene in the professional discretion of the pilot during pilotage.  Does this mean that it does not have “complete control” over the pilot as required for the purpose of vicarious liability?  Certainly not.  Countless judgments have imposed vicarious liability on employers for torts of professional employees such as, for example, vicarious liability of medical institutions for torts of doctors.  What, if then is the proper test for the existence of complete control for the purpose of vicarious liability of an employer for an employee?

“The complete control of the manner of execution is expressed in the fact that the employer determines the organizational and technical framework in which the employee will work . . .  the employee is not free to perform the work he is given as he wishes.  He must perform it in the organizational and technical manner which is established by the employer.  It is true, the employer is not permitted to interfere in the professional discretion of the employee, and is not permitted to instruct him as to how to use the tools and materials which are at his disposal, but he still is permitted to tell him which tools and materials to use” (A. Barak Vicarious Liability in Tort Law (1964) [24] 131.  See also at pp. 132-135, 167).

See also CA 85/60 Water Works Company Ltd. v. Segel [10] at 1949; CA 502/78 [3] (paragraph 29 supra) at pp. 758-759.

According to this test, it is clear that the Ports Authority must bear vicarious liability for the pilot.

However, in addition to the vicarious liability of the Ports Authority for the pilot, by force of the status of the Authority as an employer, there is also, by force of the Pilotage Ordinance, vicarious liability of Zim for the pilot.  Does the vicarious liability of Zim cancel out the vicarious liability of the Ports Authority?  It would have been proper to examine this question seriously if the vicarious liability of Zim had also stemmed from employer status.  In this situation it is to be asked whether it is proper to have vicarious liability of a permanent employer and of a temporary employer, simultaneously, for the tort of one employee.  (As to this question see on the one hand, CA 197/58 Eylon v. Yadi [11], at 1460-1461; CA 54/64 Peretz v. Keren Kayemeth LeIsrael Ltd. [12] at 392; on the other hand see CA 502/78 [3] (paragraph 29 supra), at p. 761.  See also Barak,  (supra), at pp. 137-138, 152; Y. Bahat (Buchhalter) ‘Dual Vicarious Liability for the Acts of an Employee – As of When?’ [30])  However, in my view, vicarious liability of the ship owner for the pilot based on the Pilotage Ordinance does not stem from an employment relationship but from an agency relationship, see supra paragraph 19.  Vicarious liability of a principal for an agent, as distinguished from vicarious liability of an employer for an employee, is not conditioned upon control by the principal of the agent, but in the substitution of the principal with the agent, and it does not impinge on the complete control that the Ports Authority, as the permanent employer of the pilot, has over the work of the pilot.  Therefore, Zim’s vicarious liability does not prevent the vicarious liability of the Authority.  Compare CA 502/78 [3] (supra paragraph 29) at p. 761.

31.  The Ports Authority also seeks to release itself of vicarious liability for the negligence of the pilot on the basis of the law in other common law countries.  Indeed, England, Canada, New-Zealand and Australia do not recognize vicarious liability of the entity in charge of the port for damage caused by the pilot.  However, the law in these countries has grown against the background of special legal arrangements, different from the arrangements practiced in Israel.  Inter alia, the body in charge of the port in these countries is not authorized in pilotage, but pilotage is the independent business of the pilot, while in Israel, as has been established in section 24(a) of the Ports and Railways Authority Act, “The Authority is permitted to work, whether on its own or via others, in any service provided at the port,” and the pilotage services are included in this.  Detailed comparison among the legal arrangements common in those countries and the legal arrangements common in Israel would require a long and detailed discussion, and I do not see fit to lengthen and complicate matters further, when they are already complex and exhausting.  Therefore, I will say only this, the different background to the laws that apply in the matter at hand, in Israel on the one hand and in other countries on the other, very much weakens the weight that is to be given to comparative law.  I will say further that there are also common law countries that recognize vicarious liability of the entity in charge of the port for the damage caused by the pilot.  (See, as to the United States, United States v. Port of Portland, 147 F. 865 (1906)[18]; City of Long Beach v. American President Lines, 223 F.2d 853 (9th Cir., 1955)[19]; National Development Company v. City of Long Beach, 187 F.Supp. 109 (1960)[20]; 70 Am.Jur. 2d sec. 443 (1987) [39]).  Therefore, comparative law cannot change the conclusion that the Ports Authority bears vicarious liability for the pilot.

However, since Zim also bears vicarious liability for the pilot, the question arises as to the distribution of liability between the pilot, the Ports Authority and Zim.  In order to answer that question we will now examine the relationship between the ship owner and the Ports Authority.

The Ship Owner and the Ports Authority

32.  The joining of the ship owner and the Ports Authority in vicarious liability for the pilot means that each one of them carries liability together with the pilot.  As a result, one who was injured by the pilot can sue the pilot, the ship owner, and the Authority, whether jointly or severally.  See Torts Ordinance section 11 and section 84(a).  (See also CA 22/75 Edri v. Azizian [5] at 709-710; FH 15/88 Melekh v. Kurhauser [13] at 103.)

The joint liability of the pilot, the ship owner and the Ports Authority frees the party suffering damage from dealing with distribution of liability between the three responsible parties.  Distribution of liability between the three only comes up in the internal relationships between them.  Generally, from a practical standpoint, there is importance to the distribution of liability between these two: the ship owner and the Ports Authority.  What, if so, is the distribution of liability between these two?  Like in any case of joint tortfeasors, here too the court must, according to section 84(b) of the Torts Ordinance, ensure distribution of liability “according to justice and integrity, taking into account the degree of responsibility of the person for the damage.”  This section, as it has been understood in the case law, requires that the distribution be done on the basis of moral blame of each of those responsible in a proportional manner.  See, for example, CA 1170/91 B’chor v. Yehiel [14] at 218.  What, then, is the relation between the moral blame of the ship owner, who bears vicarious liability for the pilot and the moral blame of the Ports Authority which also bears vicarious liability for the pilot?

It is difficult to attribute moral blame for one who bears vicarious liability and therefore it is also difficult to distribute the liability on the basis of moral blame between two who bear vicarious liability for the same person.  Thus, there is a temptation to distribute the liability between them equally.  However, the question is, will equal distribution of liability between the Ports Authority and the ship owner achieve, in the words of section 84(b) of the Torts Ordinance, justice and integrity, taking into account the degree of responsibility of each of them for the damage.

33.  There is a difference in the essence of the vicarious liability of the Ports Authority and the ship owner.  The vicarious liability of the Ports Authority is the regular employer-employee vicarious liability.  It is based on reasons which generally justify vicarious liability: distribution of the damage, ability to supervise the employee, the benefitting of the employer from the employee’s work, and more.  On the other hand, the vicarious liability of the ship owner for the pilot is special vicarious liability: it does not stem from an employment relationship; it also does not stem from a common agency relationship; it stems from a temporary relationship which has been imposed on the ship owner by law.  See supra paragraphs 18-19.  Indeed, for these reasons the common law released ship owners from vicarious liability for a compulsory pilot, and for these reasons ship owners in the United States enjoy such a release until today.  See supra paragraph 18.  Why, therefore, did the English legislator (in 1913) and following it the legislator in the Land of Israel (in 1939), cancel the release from vicarious liability which the common law gave to ship owners in compulsory pilotage?  The English legislator adopted the recommendations of the national committee (from 1911) which was established following the Brussels International Convention for the Unification of Certain Rules with Respect to Collision of Vessels (of 1910).  Therefore, we can learn about the considerations of the English legislator from the considerations of the committee and the treaty.  These considerations, as emerges from the legal literature were two:

[a]  The legislator sought to make it easier for a third party, who suffered damage from a pilot, to be compensated for the damage.  As the pilots in England operated (until 1987) as independent contractors, and the Port Authority was not responsible for their actions, it was important for the person suffering damage that liability for the damage be imposed on the ship owner.  However, a lawsuit against the ship owner was liable to encounter difficulties, based on the need to point to the fault of the ship owner or the captain.  In many cases the ship owner would defend himself against such a lawsuit by redirecting the fault onto the pilot; the pilot would redirect the fault to the captain; and the person suffering damage would have difficulty determining where the fault lay, and was even likely to leave the proceedings empty-handed.  Therefore the law came and established that the person suffering damage was entitled to sue the ship owner, by way of vicarious liability, for compensation of damage caused by the fault of the pilot.  See Douglas and Green (paragraph 12 supra) [31] at p. 199.

[b]  The legislator sought to increase the safety of pilotage.  Prior to amending the law, the captain did not have a good incentive to follow the course of the pilotage and supervise the pilot’s work, as there was no concern that the captain or the ship owner would be held liable for damage that the pilot was at fault for.  The opposite: it was specifically the involvement of the captain in pilotage that would expose him (and the ship owner) to liability for such damage.  However, it is clear that the involvement of the captain in pilotage advances the safety of the pilotage.  See G.K. Geen & R.P.A. Douglas the Law of Pilotage (London, 2nd ed., 1983) [35] at 81.

In light of the historical background of the Pilotage Ordinance, it is appropriate to say that these two considerations were the considerations that were also at the basis of the vicarious liability of the ship owner (and of the captain) for a pilot in Israel.

But these considerations which are sufficient to impose on the ship owner liability toward the person suffering damage for damage caused by the pilot, should not necessarily determine the distribution of liability for damage between the ship owner and the Ports Authority.  As, in terms of the person suffering damage, after he is ensured that he will be able to receive the compensation he is entitled to from the ship owner, it is not his concern whether and how the ship owner shares liability with the Ports Authority.  For the purpose of distribution of liability between the ship owner and the Ports Authority for damage caused by the pilot, it is to be remembered that according to the regular rules of the Torts Ordinance, the ship owner did not need to bear any liability for damage caused by compulsory pilotage; the liability imposed on the ship owner by the Pilotage Ordinance does not come to exempt the Ports Authority from liability, but to benefit the person suffering damage; as in general there is no substantive reason to exempt the Ports Authority from the vicarious liability imposed on it as with any employer, or to reduce the liability imposed on it, for damage caused by its employee, meaning, by the pilot.

Even in terms of the safety of the pilotage, there is no reason to determine, in the relationship between the ship owner and the Ports Authority that the ship owner needs to bear part of the damage caused by the pilot.  In any case, as has already been stated, the captain must supervise the pilot, and if he is negligent in his supervision he bears direct liability for the damage, and the ship owner bears vicarious liability, according to the degree of responsibility of the captain.  See supra paragraphs 14-16.

What if then is the conclusion as to the distribution of liability between the Ports Authority and the ship owner in light of section 84(b) of the Torts Ordinance, which establishes that the court will determine the distribution according to justice and integrity taking into consideration the degree of responsibility for the damage?  The conclusion is that in general the responsibility for the damage caused by the pilot will be imposed, in the relationship between the Ports Authority and the ship owner, fully on the Ports Authority.

This is generally the case, but not necessarily always so.  The question as to what is required based on justice and integrity taking into consideration the degree of responsibility for the damage is also dependent on the circumstances of the case. Therefore, the possibility is not to be ruled out that in special circumstances the court will have a special reason to deviate from the rule, and to impose on the ship owner some of the responsibility for the damage that was caused by the pilot.

34.  In the case before us Zim sued the Ports Authority for damage caused to Zim itself.  To the extent that the damage was caused by the fault of the pilot, Zim can sue the Ports Authority, which bears vicarious liability for the pilot, for compensation of Zim for this damage.  In theory, the Ports Authority can go back to Zim, which also bears vicarious liability for the pilot in accordance with the Pilotage Ordinance, and demand distribution of liability for the damage that was caused by the pilot between the Ports Authority and Zim.  However, as said, in the relationship between the Ports Authority and Zim, the liability for the damage caused by the pilot is generally imposed on the Ports Authority only.  Therefore, and absent a special reason to impose some of the liability on Zim, the Ports Authority cannot build on the claim that Zim also bears vicarious liability for the pilot, in order to reduce some of the compensation that it is liable for in light of its vicarious liability for the pilot.

Under these circumstances the Ports Authority is left with only two claims against Zim: the first, that the damage to the Ship was not caused by the negligence of the pilot; and the second, that the damage to the Ship, even if it was caused as a result of the negligence of the pilot, was also caused by the negligence of the captain, and therefore the compensation that the Ports Authority must pay Zim is to be reduced according to the proportion of the negligence of the captain.

The Negligence of the Pilot and the Captain

35.  The District Court determined that the Ship was damaged as a result of the joint negligence of the pilot and the captain.  The court attributed two-thirds of the damage to the pilot and one third to the captain.  See supra paragraph 4.  In the framework of the appeal hearing the Ports Authority and Zim agreed that the captain and the pilot were equally negligent, and that the negligent conduct of the captain and the pilot is what caused the Ship to hit the dock.  See paragraph 6 supra.  This is sufficient to determine that two of the elements of the tort of negligence in accordance with section 35 of the Torts Ordinance were fulfilled regarding the captain and the pilot: “negligent conduct” and “damage”. However, this still is not sufficient to impose personal liability in negligence on the captain and the pilot.  In order for joint negligent conduct that caused damage to lead to joint liability in negligence, it is necessary according to section 35 of the Torts Ordinance, that the two people whose conduct was negligent have a duty of care toward the person suffering the damage.  Did the negligent conduct of the captain and the pilot breach a duty of care of each of them toward Zim.

The central pillar of the duty of care, as stated in section 36 of the Torts Ordinance, is foreseeability.  The ability to foresee brings with it, generally, a duty to foresee.  In order to deviate from this rule, special considerations of legal policy must exist against imposition of the duty.  See, for example, CA 145/80 Waknin v. Bet Shemesh Local Council [15]; CA 243/83 Jerusalem Municipality v. Gordon [16].

In the case before us the Ship collided with the dock as a result of the speed of braking which was not coordinated with the distance of the Ship from the dock.  The District Court determined, as a factual matter, that the captain and pilot could have known, and perhaps even knew in fact, what the distance was, what the speed was, and what was the foreseeable result of an error in coordinating the speed with the distance.  See supra paragraph 4.  Zim never challenged this determination.  As said, the Ports Authority also now reconciles itself to this result.  See paragraph 6 supra.  Therefore, there is no reason not to affirm it.  The consequence is that the captain and the pilot were able to foresee the occurrence of the damage.  This concludes the factual portion of the negligence.

The District Court further determined that the captain and the pilot were not only able to foresee the occurrence of the damage but also should have foreseen its occurrence and taken precautionary measures to prevent it.  The Ports Authority claims that the District Court erred when it applied such a duty to the pilot.  See supra paragraph 7.  However, as we have already stated, the Authority is mistaken: the law in Israel, as in the rest of the world, is that a pilot is responsible for pilotage along with the captain.  See supra paragraphs 14-16.

The conclusion is that the joint negligent conduct of the captain and the pilot violated a joint duty of care of the captain and pilot, and this breach is what brought about the collision of the Ship with the dock.  Absent contrary considerations, it is to be said that the joint duty of care is distributed equally between the captain and the pilot.  Meaning, in light of the fact that the negligent conduct was equal and there was a single damage, the (personal) liability of the captain and the pilot for the negligence is also equal.

The Result

36.  The result is that the Ports Authority alone is liable to Zim by vicarious liability for the pilot’s negligence.  However, the pilot, were he to be sued to compensate Zim for the damage that was caused to the Ship, would be obligated, in light of the contributory negligence of the captain, for only half the damage.  The same applies to the Ports Authority.

Accordingly, the appeal is to be partially affirmed in the sense that the Ports Authority must pay Zim for only half of the damage and not two thirds as the District Court ruled. 

Orders to pay expenses and attorneys fees in the District Court will remain in force as ordered by the District Court.

Since adjustment of the amount of compensation stems from the parties’ agreement as to the degree of negligence that each party is liable for, while on the fundamental realm the claims of the Ports Authority were dismissed, the Authority must pay Zim’s court costs in this appeal in the total sum of NIS 30,000.

 

Vice-President S. Levin

I agree.

 

Justice T. Or

I agree.

 

Justice E. Mazza

I agree.

 

Justice M. Cheshin

I agree.

 

Decided as per the decision of Justice I. Zamir.

 

11 Tishrei 5761

October 10, 2000

 

 

Facts: Pamesa Ceramica (‘Pamesa’), a Spanish company, manufactured floor tiles that were imported into Israel by companies later acquired by Yisrael Mendelson Engineering Technical Supply Ltd (‘Mendelson’). These were subsequently bought by a construction company, Yaakov and Tovi Eisenberger Building and Public Works Co. Ltd (‘Eisenberger’), and used in the construction of a residential building in Kiryat Motzkin.

After the buildings became inhabited, a defect was found in the tiles. Eisenberger replaced the tiles and sued Mendelson for reimbursement of the price of the tiles and the work involved in replacing them, and for compensation for damage to its reputation (in a total amount of NIS 1,173,100). Mendelson sent a third party notice to Pamesa claiming Pamesa was liable for any amount that it would be found liable to pay to Eisenberger.

The District Court found the importer to be fully liable for the defective tiles. It also upheld the third party notice, rejecting Pamesa’s claim it was not notified of the defect in the products within a period of two years and therefore the third party notice was prescribed under the Sale (International Sale of Goods) Law, 5731-1971. The District Court held that Pamesa had been aware that the tiles were problematic, and that the prescription period of two years in the Sale (International Sale of Goods) Law, 5731-1971, only applied to contractual claims, but not to claims in tort, and Pamesa had been negligent in the manufacture of the tiles.

All three parties appealed the judgment of the District Court to the Supreme Court. Eisenberger appealed solely on the question of quantum of damages for the damage to its goodwill. Mendelson appealed the finding that it was liable to Eisenberger. Pamesa appealed the finding that it was liable to Mendelson.

The main question in the appeal was whether the prescription period of two years in the Sale (International Sale of Goods) Law can be circumvented by a buyer who does not give notice of a defect in goods by raising a claim against the seller (manufacturer) in tort.

 

Held: The Supreme Court allowed Pamesa’s appeal. Even if Pamesa had been aware that the tiles were problematic, this was insufficient. Article 40 of the Hague Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods of 1964 provides that the prescription period of two years for international sales of goods will not apply if the seller knew of the defect, but the buyer needs to prove that the seller knew of the specific defect being alleged. Awareness of ‘problems’ in a certain product is insufficient. Mendelson should have given Pamesa notice within two years of receiving the goods, and since it did not do so, the action was prescribed under the Sale (International Sale of Goods) Law.

The Supreme Court held that the District Court was essentially correct when it held that a buyer may sue a seller (manufacturer) for negligence in an international sale of goods after the two year prescription period has expired. But after the two year prescription period has expired, the seller no longer has strict liability under the Sale (International Sale of Goods) Law, and the buyer is required to prove negligence. The Supreme Court held that Mendelson had not discharged the burden of proving that Pamesa had in fact been negligent.

Mendelson’s appeal was allowed solely on the question of deducting Value Added Tax from the amount awarded, a question that Eisenberger did not address in its arguments.

 

Appeal CA 7833/06 allowed. Appeal CA 8125/06 allowed in part. Appeal CA 8495/06 denied.

 

CA 140/00

CA 550/01

1.       Estate of the late Michael Ettinger deceased

2.       Chaya Ettinger

3.       Yosef Ettinger

4.       Yael Ettinger

v

1. Company for the Reconstruction and Development of the Jewish Quarter

2.       Jerusalem Fund

3.       Jerusalem Municipality

4.       Reuven Shalom

5.       Yitzhak Feitliss

6.       Mordechai Borochov

 

The Supreme Court sitting as the Court of Civil Appeal

[15 March 2004]

Before President A. Barak, Vice-President T. Or and Justices E. Mazza, D. Dorner, E. Rivlin

 

Appeal on the judgment of the Jerusalem District Court (Justice Y. Adiel) on 18 November 1999 in CC 4/95.

 

Facts: The late Michael Ettinger died after falling into an unfenced pit at an archaeological site located near a playground in the Old City of Jerusalem. He was twelve years old. The appellants, his estate and family, sued the respondents for compensation in the District Court. The main issue considered in the Supreme Court on appeal was whether the estate was entitled to compensation for loss of the deceased’s earning capacity in the ‘lost years’ — the years of working life that the deceased lost because he died as a result of the respondents’ negligence. This issue had been considered more than twenty years earlier, in Estate of Sharon Gavriel v. Gavriel, where the majority held that legislation was required to allow an award of compensation for loss of earning capacity in the ‘lost years.’ But no legislation to this effect had been enacted in the interim.

A second issue that was considered in the appeal was whether the respondents should have been found liable to pay punitive damages.

 

Held: The time had come to reconsider the issue of compensation for loss of earning capacity in the ‘lost years.’ The Supreme Court held that:

Where a person suffers a reduction of life expectancy as a result of a tortious act, he is entitled to compensation for the loss of earning capacity in the ‘lost years.’

Where a person dies as a result of a tortious act, his claim to compensation for the loss of earning capacity in the ‘lost years’ passes to his estate. If the deceased has dependants who are awarded compensation for loss of support in the ‘lost years,’ this compensation is deducted from the compensation payable to the estate for loss of the deceased’s earning capacity in the ‘lost years,’ to prevent double liability being imposed on the tortfeasor.

The Supreme Court left undecided the question of whether Israeli courts have the power to award punitive damages, since the facts of this case did not warrant an award of punitive damages in any case.

 

Appeal allowed in part.

 

Legislation cited:

Basic Law: Human Dignity and Liberty.

Enforcement Law, 5727-1967, s. 12.

Liability for Defective Products Law, 5740-1980.

Patents Law, 5627-1967, s. 183.

Penal Law, 5737-1977, ss. 304, 309(5).

Road Accident Victims Compensation Law, 5735-1975, ss. 4, 6.

Road Accident Victims Compensation (Calculation of Compensation for Non-Pecuniary Loss) Regulations, 5736-1976, r. 4.

Road Accident Victims Compensation (Periodic Payments) Regulations, 5738-1978, r. 3.

Torts Ordinance [New Version], ss. 19, 19(a), 19(b), 19(d), 76, 78, 78-81, 79, 80, 81(1).

 

Israeli Supreme Court cases cited:

[1]      CA 295/81, Estate of Sharon Gavriel v. Gavriel [1982] IsrSC 36(4) 533.

[2]      CA 22/49 Levy v. Mosaf [1950] IsrSC 4 558.

[3]      CA 357/80, Naim v. Barda [1982] IsrSC 36(3) 762.

[4]      FH 29/83, Sahar Insurance Co. Ltd v. Cahanka [1985] IsrSC 39(1), 833.

[5]      CA 95/55 Salomon v. Adler [1955] IsrSC 9 1905.

[6]      CA 116/81 Estate of Aharon Knafo v. Arnon Tussia-Cohen [1982] IsrSC 36(4) 580.

[7]      CA 248/86 Estate of Lily Hananshwili v. Rotem Insurance Co. Ltd [1991] IsrSC 45(2) 529.

[8]      CA 642/89 Estate of Meir Schneider v. Haifa Municipality [2002] IsrSC 56(1) 470.

[9]      CA 4022/98 The Technion, Israel Technological Institute v. Twister, Takdin (SC) 99(2) 255.

[10]    CA 110/86 Gevaram v. Heirs of the late Shalom Manjam [1988] IsrSC 42(2) 193.

[11]    HCJ 693/91 Efrat v. Director of the Population Register at the Ministry of Interior [1993] IsrSC 47(1) 749.

[12]    CA 2939/92 General Federation Medical Fund v. Rachman [1995] IsrSC 49(2) 369.

[13]    CA 70/52 Grossman v. Roth [1952] IsrSC 6 1242.

[14]    CA 79/65 Israel Steel Enterprises Ltd v. Malca [1965] IsrSC 19(2) 266.

[15]    CA 5794/94 Ararat Insurance Co. Ltd v. Ben-Shevach [1997] IsrSC 51(3) 489

[16]    CA 44/76 Atta Textile Co. Ltd v. Schwartz [1976] IsrSC 30(3) 785.

[17]    CFH 7794/98 Ravid v. Clifford [2003] IsrSC 57(4) 721.

[18]    CA 30/80 State of Israel v. Asher [1981] IsrSC 35(4) 788.

[19]    CA 722/86 Youness v. Israel Car Insurance Pool [1989] IsrSC 43(3) 875.

[20]    CA 541/63 Reches v. Hertzberg [1964] IsrSC 18(2) 120.

[21]    CA 773/81 Estate of Robert Freilich v. State of Israel [1982] IsrSC 36(4) 816.

[22]    CA 237/80 Barsheshet v. Hashash [1982] 36(1) 281.

[23]    CA 141/89 Mahmoud v. Shamir Insurance Co. Ltd, Takdin (SC) 91(3) 1329.

[24]    CA 384/74 Estate of David Azoulay v. Vulcan Casting Enterprises Ltd [1976] IsrSC 30(1) 374.

[25]    CA 2376/93 Estate of Michal Kedar v. HaSneh Insurance Co. [1995] IsrSC 49(1) 594.

[26]    CA 148/53 Penetz and Egged Operative Group Ltd v. Feldman [1955] IsrSC 9(3) 1711.

[27]    CA 482/89 Estate of Sarah Abir v. Ferber [1993] IsrSC 47(3) 107.

[28]    CA 506/82 Sontag v. Estate of David Mendelsohn [1986] IsrSC 40(3) 113.

[29]    CA 64/89 Gabbai v. Lausanne [1994] IsrSC 48(4) 673.

[30]    CA 206/87 General Federation Medical Fund v. Estate of Dr Meir Edison [1991] IsrSC 45(3) 72.

[31]    FH 24/81 Honovitz v. Cohen [1984] IsrSC 38(1) 413.

[32]    CA 32/60 Felixberg v. General Manager of the Railway [1960] IsrSC 14 1629.

[33]    CA 778/83 Estate of Sarah Saidi v. Poor [1986] IsrSC 40(4) 628.

[34]    CA 489/79 Eliyahu Insurance Co. Ltd v. Estate of Violet Tzaig [1981] IsrSC 35(2) 123.

[35]    CA 5/84 Yehezkel v. Eliyahu Insurance Co. Ltd [1991] IsrSC 45(3) 374.

[36]    CA 471/93 Estate of David Hyams v. Hyams, Takdin (SC) 97(2) 969.

[37]    CA 1503/94 Israeli Phoenix Insurance Co. Ltd v. Estate of Baruch Berman, Takdin (SC) 96(2) 796.

[38]    CA 154/70 Bida v. Rubin [1971] IsrSC 25(2) 43.

[39]    CA 682/69 Hamudot v. Shapira [1970] IsrSC 24(1) 686.

[40]    CA 501/84 Migdal Insurance Co. Ltd v. Miron [1988] IsrSC 42(2) 89.

[41]    CA 610/75 Rotem v. Nof [1978] IsrSC 32(1) 799.

[42]    CA 1299/92 Estate of Aliza Mor v. Rom [1996] IsrSC 50(1) 697.

[43]    CA 541/88 Protection of Nature Society v. Estate of Ora Forman [1992] IsrSC 46(1) 133.

[44]    CA 204/85 State of Israel v. Mizrahi [1988] IsrSC 42(2) 113.

[45]    CA 587/87 Malca v. Aktin [1990] IsrSC 44(4) 168.

[46]    CA 311/85 Efraimov v. Gabbai [1988] IsrSC 42(3) 191.

[47]    CA 634/88 Attiya v. Zaguri [1991] IsrSC 45(1) 99.

[48]    CA 209/53 Weizman v. Zucker [1954] IsrSC 8 1428.

[49]    CA 685/79 Atrash v. Maalof [1982] IsrSC 36(1) 626.

[50]    CA 335/59 Reichani v. Tzidki [1961] IsrSC 15 159.

[51]    CA 326/88 Zimmerman v. Gavrielov [1992] IsrSC 46(1) 353.

[52]    CA 142/89 Gamliel v. Oshiot Insurance Co. Ltd, Takdin (SC) 90(3) 683.

[53]    CA 1977/97 Barzani v. Bezeq, the Israel Telecommunication Corp. Ltd [2001] IsrSC 55(4) 584.

[54]    LCrimA 2976/01 Assaf v. State of Israel [2002] 56(3) 418.

[55]    CA 216/54 Schneider v. Glick [1955] IsrSC 9 1331.

[56]    CA 81/55 Kochavi v. Becker [1957] IsrSC 225.

[57]    CA 277/55 Rabinowitz v. Sela [1958] IsrSC 12 1261.

[58]    CA 30/72 Friedman v. Segal [1973] IsrSC 27(2) 225.

[59]    CA 670/79 HaAretz Newspaper Publishing Ltd v. Mizrahi [1987] IsrSC 41(2) 169.

[60]    CA 711/72 Meir v. Governors of the Jewish Agency for Israel [1974] IsrSC 28(1) 393.

[61]    CA 3654/97 Kartin v. Ateret Securities (2000) Ltd [1999] IsrSC 53(3) 385.

[62]    CA 372/65 Dehan v. Francis [1965] IsrSC 19(4) 192.

[63]    CA 15/66 Shinar v. Hassan [1966] IsrSC 20(2) 455.

[64]    CA 283/89 Municipality of Haifa v. Moskowitz [1993] IsrSC 47(2) 718.

[65]    CA 235/78 Hornstein v. Ohavi [1979] IsrSC 33(1) 346.

[66]    CA 184/80 Eigler v. HaMagen [1981] IsrSC 35(3) 815.

[67]    CA 2801/96 El-Al Israel Airlines Ltd v. Yifrach [2001] IsrSC 55(1) 817.

[68]    CA 675/82 Asadi v. Cohen, IsrSC 38(4) 449.

[69]    CA 180/88 Ozeri v. Sarufi, Takdin (SC) 90(3) 606.

[70]    CA 3843/90 Ohayon v. State of Israel, Ministry of Defence, Takdin (SC) 93(3) 428.

[71]    CA 286/55 Wolfovitz v. Fisher [1957] IsrSC 11(1) 379.

[72]    CA 402/75 Estate of Yisrael Mashiach v. Rosenblum [1976] IsrSC 30(3) 97.

[73]    CA 2517/93 A v. Katahin, Takdin (SC) 94(2) 335.

[74]    CA 6978/96 Amar v. General Federation Medical Fund [2001] IsrSC 55(1) 920.

[75]    CA 2055/99 A v. Israel Chief Rabbinate, Takdin (SC) 2001(2) 240.

[76]    CA 163/99 Estate of Diav Mizawi v. Dori Engineering Works Co. Ltd, Takdin (SC) 2000(1) 187.

[77]    CA 5938/97 Peleg v. Tardiman, Takdin (SC) 2000(1) 187.

 

Israeli District Court cases cited:

[78]    CC (TA) 1549/96 Levy v. Hadassah Medical Organization, Dinim (DC) 32(1) 622.

[79]    CC (Hf) 1581/94 Hattib v. State of Israel, Dinim (DC) 32(7) 163.

 

American cases cited:

[80]    Doe v. United States, 737 F. Supp. 155 (1990).

[81]    Prairie Creek Coal Mining Co. v. Kittrell, 153 S.W. 89, 94 (1912).

[82]    Littman v. Bell Telephone Co. of Pennsylvania, 315 Fa. 370, 172 A. 687 (1934).

[83]    In re Joint Eastern & Southern District Asbestos Litigation, 726 F. Supp. 426 (1989).

[84]    United States v. Carroll Towing Co., 159 F. 2d 169 (1947).    

[85]    Mclaughlin v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., 143 N. W. 2d 32 (1966).

[86]    Morrison v. State, 516 P. 2d 402 (1973).

[87]    Borcherding v. Eklund, 55 N.W.2d 643 (1952).

[88]    Crecelius v. Gamble-Skogmo, Inc., 13 N.W. 2d 627 (1944).

[89]    Burke v. United States, 605 F. Supp. 981 (1985).

[90]    Fein v. Permanente Medical Group, 695 P.2d 665 (1985).

[91]    Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573 (1974).

[92]    Ehlinger v. State, 237 N.W.2d 784 (1976).

[93]    Hughes v. Chicago, R.I. & P. Ry. Co., 129 N.W. 956 (1911).

[94]    Olivier v. Houghton County St. Ry., 101 N. W. 530 (1904).

[95]    Hindmarsh v. Sulpho Saline Bath Co., 187 N.A. 806 (1922).

[96]    Balmer v. Dilley, 502 P. 2d 456 (1972).

[97]    Runyon v. District of Columbia, 463 F. 2d 1319 (1972).

[98]    Weaver v. Ford Motor Co., 382 F. Supp. 1068 (1974).

[99]    Hope v. Seahorse, Inc., 651 F. Supp. 976 (1986).

[100]  Murray v. Philadelphia Transp. Co., 58 A. 2d 323 (1948).

[101]  Ferne v. Chadderton, 69 A. 2d 104 (1949).

[102]  Greene v. Texeira, 505 P. 2d 1169 (1973).

[103]  Prunty v. Schwantes, 162 N. W. 2d 34 (1968).

[104]  Sanderson v. Steve Snyder Enterprises, Inc., 491 A. 2d 389 (1985).

[105]  B.M.W. of North America Inc., v. Gore, 116 S. Ct. 1589 (1996).

 

Australian cases cited:

[106]  Skelton v. Collins, 115 C.L.R. 94 (1996).

[107]  Sharman v. Evans (1977) 138 C.L.R. 563.

[108]  Rose v. Motor Vehicle Insurance Trust (1974) 48 A.L.J.R. 352.

[109]  Fitch v. Hyde-Cates, 150 C.L.R. 482.

[110]  Uren v. John Fairfax & Sons Pty Ltd (1966) 117 C.L.R. 118.

[111]  Lamb v. Cotogno (1987) 74 ALR 188.

 

Canadian cases cited:

[112]  Andrews v. Grand & Toy Alberta Ltd. [1978] 2 S.C.R. 229.

[113]  The Queen in right of Ontario v. Jennings [1966] 57 D.L.R. 2d 644.

[114]  Sigouin (Guardian in litem of) v. Wong (1992) 10 C.C.L.T. 2d 236.

[115]  Dube v. Penlon Ltd. (1994) 21 C.C.L.T. 2d 268.

[116]  Toneguzzo-Norvell v. Burnaby Hospital (1994) 1 S.C.R. 114.

[117]  Semenoff v. Kokan (1991) 84 D.L.R. (4th) 76.

[118]  Duncan (Estate of) v. Baddeley (2000) A.B.C.A. 277.

[119]  Brown v. University of Alberta Hospital (1997) 145 D.L.R. 4th 63; [1997] 4 W.W.R. 645 (Alta. Q.B.).

[120]  Granger v. Ottawa General Hospital (1996) 7 O.T.C. 81; (1996), 63 ACWS (3d) 1278, [1996] OJ No. 2129 (Ont. Gen. Div.).

[121]  Duncan (Estate of) v. Baddeley (1997) 196 A.R. 161.

[122]  Marchand v. Public General Hospital of Chatham (2000), 51 O.R. (3d) 97 (C.A.).

[123]  Saint John Regional Hospital v. Comeau (2001) MBCA 113.

[124]  Balkos v. Cook (1991) 75 O.R. 593.

[125]  Rayner v. Knickle (1991) 88 Nfld. & P.E.I.R 214.

[126]  Woollard v. Coles, 85 A.C.W.S. (3d) 564 (1998).

[127]  Galand Estate v. Stewart (1992) 135 A.R. 129.

[128]  Brooks (Estate of) v. Stefura (1998) 2000 ABCA 276.

[129]  Vorvis v. Insurance Corp. of British Columbia (1989) 1 S.C.R. 1085.

[130]  Muir v. Alberta (1996) 132 D.L.R. (4th) 695.

[131]  Hill v. Church of Scientology of Toronto [1995] 2 S.C.R. 1130.

[132]  Coughlin v. Kuntz (1989) 42 B.C.L.R. (2d) 108.

 

English cases cited:

[133]  Pope v. D. Murphy & Son Ltd [1961] 1 Q.B. 222.

[134]  Oliver v. Ashman [1962] 2 Q.B. 210; [1961] 3 All ER 323.

[135]  Pickett v. British Rail Engineering Ltd [1980] A.C. 136; [1979] 1 All ER 774.

[136]  Lim Poh Choo v. Camden & Islington Area Health Authority [1980] A.C. 174.

[137]  Croke v. Wiseman [1981] 3 All ER 852.

[138]  Phillips v. London & South Western Railway Co. [1879] 5 Q.B.D. 78.

[139]  Roach v. Yates [1938] 1 K.B. 256.

[140]  Harris v. Brights Asphalt Contractors Ltd [1953] 1 Q.B. 617.

[141]  Wise v. Kaye [1962] 1 Q.B. 638; [1962] 1 All ER 257.

[142]  McCann v. Sheppard [1973] 1 W.L.R. 540; [1973] 2 All ER 881.

[143]  Harris v. Empress Motors Ltd [1983] 3 All ER 561; [1984] 1 W.L.R. 212.

[144]  Phipps v. Brooks Dry Cleaning Services Ltd [1996] P.I.Q.R. Q100; 140 SJ LB 173.

[145]  Connolly v. Camden & Islington Area Health Authority [1981] 3 All ER 250.

[146]  Adsett v. West [1983] 2 All ER 985.

[147]  Gammell v. Wilson [1982] A.C. 27; [1981] 1 All ER 578.

[148]  White v. London Transport Executive [1982] Q.B. 489; [1982] 1 All ER 410.

[149]  Sullivan v. West Yorkshire Passenger Transport Executive [1985] 2 All ER 134.

[150]  Kandalla v. British European Airways Corp. [1981] Q.B. 158; [1980] 1 All ER 341.

[151]  Khodaparast v. Shad [2000] 1 W.L.R 618; [2000] 1 All ER 545.

[152]  Kuddus v. Chief Constable of Leicestershire Constabulary [2001] 3 All ER 193.

[153]  Cassell & Co. Ltd v. Broome [1972] A.C. 1027; [1972] 1 All ER 801.

[154]  Loudon v. Ryder [1953] 2 Q.B. 202; [1953] 1 All ER 741.

[155]  Rookes v. Barnard [1964] A.C. 1129; [1964] 1 All ER 367.

[156]  A.B. v. South West Water Services Ltd [1993] Q.B. 507; [1993] 1 All ER 609.

[157]  Australian Consolidated Press v. Uren [1969] 1 A.C. 590; [1967] 3 All E.R. 523.

[158]  A. v. Bottrill [2002] 3 W.L.R. 1406.

[159]  Heil v. Rankin [2000] 2 W.L.R. 1173; [2000] 3 All ER 138.

 

Irish cases cited:

[160]  Doherty v. Bowaters Irish Wool Board Ltd [1968] I.R. 277.

[161]  Conley v. Strain [1988] I.R. 628.

[162]  Conway v. INTO [1991] 2 I.R. 305.

 

New Zealand cases cited:

[163]  Taylor v. Beere [1982] 1 N.Z.L.R. 81.

 

South African cases cited:

[164]  Goldie v. City Council of Johannesburg, 1948 (2) S.A. 913 (W.).

[165]  Lockhat's Estate v. North British and Mercantile Insurance Co. Ltd (1959) 3 S.A. 295 (A.)).

 

For the appellants — Y. Neeman, B. Katzman.

For respondents 1-3 — Carmeli Arnon & Co.

For respondents 4-5 — M. Kaplinsky.

For respondent 6: Adv. Tz. Noach.

 

 

JUDGMENT

 

 

Justice E. Rivlin

Introduction

1.    The main issue that requires a determination in the distressing case before us concerns the right of a person, who is injured as a result of a tort and whose life expectancy is shortened, to compensation for the loss of his earning capacity in the ‘lost years,’ i.e., those years by which his working life expectancy was reduced as a result of his death. This very question was considered by this court in CA 295/81 Estate of Sharon Gavriel v. Gavriel [1]. The majority opinion in that case (President Y. Kahan, Vice-President M. Shamgar and Justice M. Bejski) held that in Israeli law the injured person is not entitled to compensation for this head of damage. The minority (Justices A. Barak and S. Levin) were of the opinion the court should recognize the right of an injured person to compensation.

Approximately twenty years have passed since the judgment in Estate of Sharon Estate v. Gavriel [1] was given, and the issue of the ‘lost years’ has come before us once again.

Background

2.    The late Michael Ettinger (hereafter — the deceased), who was born in 1976, was playing with a friend of the same age at a playground, close to his home, in the Jewish Quarter of the Old City of Jerusalem. He fell into the ‘Nea Archaeological Site,’ an unfenced pit, which has a concrete floor at the bottom, that was situated nearby (hereafter — the accident). The deceased suffered injuries to his head and was taken to hospital, where he died the next day. He was only twelve years old.

The appellants in CA 140/00 — the estate, parents and sister of the deceased — filed an action in the District Court, in which they argued that the estate should be awarded compensation for the lost earning years of the deceased. The appellants also asked that the respondents be found liable for punitive damages, in view of the conviction of respondents 1, 4, 5 and 6 in a criminal trial that was brought against them, on a charge of negligently causing the death of the deceased (an offence under ss. 304 and 309(5) of the Penal Law, 5737-1977). The appellants also asked that they should be awarded damages for the non-pecuniary damage of the reduction of the deceased’s lifespan.

According to a procedural arrangement reached between the parties, which was given the force of a court decision, the factual basis that was determined in the judgment in the criminal trial was submitted to the trial court, and it was submitted to us also. Within the framework of that arrangement, it was agreed also that the respondents waive any contention of contributory negligence on the part of the deceased or negligence on the part of his parents.

3.    The Jerusalem District Court (his honour Justice Y. Adiel) held that the rule in Estate of Sharon Gavriel v. Gavriel [1], which as aforesaid does not recognize the entitlement of an injured person to compensation for the loss of earning capacity in the ‘lost years,’ is still valid today, after the enactment of the Basic Law: Human Dignity and Liberty. Therefore the District Court dismissed the claim on this head of damage. The court also held that there was no basis for awarding punitive damages in this case. Nonetheless, in view of the fifty-nine years by which the life expectancy of the deceased was shortened, the District Court awarded compensation in favour of the estate for non-pecuniary damage, in an amount of NIS 350,000, with interest from the date on which the deceased died.

4.    The two appeals before us are directed against the judgment of the District Court. CA 140/00 is directed against the decision of the trial court on the issue of the ‘lost years’ and the punitive damages. The appellants argue that the changes that have taken place in Israeli law, since the rule in Estate of Sharon Gavriel v. Gavriel [1] was decided — including the enactment of the Basic Law: Human Dignity and Liberty — justify a re-examination of that decision. Earning capacity — so the appellants claim — falls within the constitutional property right, and an infringement of this right, by way of a reduction of life expectancy, requires, in their opinion, an award of compensation. According to the appellants, recognition of a right to compensation for the lost earning years is consistent with the remedial purpose that underlies the law of torts, and is consistent with considerations of justice, in that it can prevent a situation in which wrongfully causing death leads to lesser financial consequences that causing personal injury. Such compensation is also required, in the appellants’ opinion, in view of policy considerations that require an effective deterrent. The appellants also point to the fact that the rule in Estate of Sharon Gavriel v. Gavriel [1] addressed the provisions of the Road Accident Victims Compensation Law, 5735-1975 (hereafter — the Compensation Law), whereas here we are dealing with a claim under the Torts Ordinance [New Version] (hereafter — the Ordinance or the Torts Ordinance). According to them, the two are not the same in so far as the justification for compensation for the loss of earning capacity in the ‘lost years’ is concerned.

The appellants complain, as aforesaid, also about the decision of the trial court not to find the respondents liable for the payment of punitive damages. In this matter they argue that the conduct of the respondents, as expressed in the criminal judgment against them, indicates apathy, indifference and blatant contempt for human life. This conduct led to a tragic result. Therefore, the appellants are of the opinion that the respondents should be found liable for the payment of punitive damages.

The respondents, for their part, are of the opinion that no intervention is required in the District Court decision not to award the appellants compensation for the loss of the deceased’s earning capacity in the ‘lost years.’ According to them, there is no justification for departing from the rule determined in Estate of Sharon Gavriel v. Gavriel [1], and in essence they relied on the reasons given there. The respondents also claim that no intervention is required in the decision of the District Court not to award the appellants punitive damages. In this respect, the respondents argue that it is doubtful whether the court, under the provisions of Israeli law, has jurisdiction to award punitive damages, and that in any event in their case there was no element of intention or deliberateness, which is a condition for awarding such damages.

In the counter-appeal, the respondents argue that the court was excessive in the amount that it awarded for the non-pecuniary damage arising from the reduction of the deceased’s life expectancy. In their opinion, the amount that was awarded for this head of damage is inconsistent with the abundant case law, and in this case, so they claim, the fixed tariff in the Compensation Law should be used, for the non-pecuniary damage, as the criterion for awarding compensation.

5.    An additional dispute between the parties broke out within the framework of the enforcement of the judgment given by the trial court, and it concerns the question of what is the date as of which the amount awarded for the reduction of life expectancy should be calculated. The Chief Enforcement Officer applied, in this regard, to the District Court, by virtue of his power under section 12 of the Enforcement Law, with a request for clarification. The District Court clarified that the amount that was awarded was calculated and determined as of the date of the judgment. The appellants in CA 550/01 object to this decision, and they also claim that the amount that was awarded for the reduction of life expectancy is too little, does not reflect the damage caused and is inconsistent with prevailing case law.

The appellants also complain, within the framework of CA 550/01, that the District Court did not award the estate compensation for pain and suffering. The honourable registrar of this court, Justice B. Okun, granted the appellants an extension of the time for filing the appeal in this matter.

6.    We will consider the questions in the appeals before us in the following order. First we will consider the fundamental question concerning the right to compensation for the loss of earning capacity in the ‘lost years,’ and the specific question concerning the entitlement of the deceased’s estate to compensation for this head of damage. Next we will consider whether there were grounds, in the circumstances of this case, to award the appellants punitive damages. Finally we will decide the other arguments raised before us. In the final analysis, we will recommend that the appeal in CA 140/00 should be allowed, in so far as the question of the ‘lost years’ is concerned, and that there are no reasons for intervention in the other determinations of the trial court.

The issue of the ‘lost years’

Presentation of the issue

7.    The awarding of compensation in the law of torts has the primary purpose of placing the injured person in the position he would have been in had it not been for the wrongful act, in so far as it is possible to do this by means of a pecuniary payment (CA 22/49 Levy v. Mosaf [2], at p. 564; CA 357/80, Naim v. Barda [3], at p. 772; A. Barak, ‘Assessing compensation in personal injury: the law of torts as it is and as it should be,’ 9 Tel-Aviv University Law Review (Iyyunei Mishpat) 243 (1983)). The compensation for the loss of earning capacity is also intended to achieve this purpose. This compensation — which belongs to the category of pecuniary heads of damage — takes into account the harm to the earning capacity of the injured person as a result of the wrong that was done to him. Therefore, if a person suffers personal injury as a result of a tortious act, and he is no longer able to continue working as before, the court will award him compensation for the loss of earning capacity. The amount of the compensation will be determined in accordance with the capitalized value of the difference between the potential earning capacity of the injured person, had the damage not occurred, and his actual earning capacity after his injury (see FH 29/83, Sahar Insurance Co. Ltd v. Cahanka [4], at p. 836).

The loss of earning capacity is examined, of course, also by taking into account the working life expectancy of the injured person. ‘Indeed, it is well-known that when formulating a “compensation equation,” for the purpose of the loss of earning capacity in the future, the length of the period for which the calculation is made is one of the main elements’ (D. Katzir, Compensation for Personal Injury (fourth edition, 1998), at p. 241). But the question is — and this is the main focus of the appeal before us — does the reduction of the working life expectancy of the injured person, as a result of a tortious act, have any effect on the compensation that will be awarded for the head of loss of earning capacity?

The question before us therefore concerns those cases in which the life expectancy of the injured person is shortened, as a result of the tortious act, to less than the retirement age that he would have had if it had not been for that act. Sometimes the reduction of life expectancy is partial, i.e., the injured person does not die shortly after the accident, but he is expected to live a shorter period of time as a result of the accident. In other cases, the reduction of the life expectancy is total, meaning that the injured person dies in the accident or shortly thereafter, with the result that he is unable to file a claim for his damage. Whichever is the case, the question arises as to whether the injured person (whose life expectancy was partially reduced and who files a claim when he is still alive) or his estate (when the injured person dies before filing a claim) is entitled to compensation for the loss of earning capacity in the ‘lost years’ — those years in which he was expected to earn from his labour, had his life not been shortened by the wrong. This question was left undecided in CA 95/55 Salomon v. Adler [5], at p. 1912, and it was decided by a majority, as aforesaid, in the decision of the Supreme Court in Estate of Sharon Gavriel v. Gavriel [1]. We will first focus on the ruling that was decided in that case.

The ruling in Estate of Sharon Gavriel v. Gavriel

8.    The late Sharon Gavriel was killed in a road accident, when she was approximately eight years old. Her estate filed a claim under the Compensation Law, inter alia for the loss of earning capacity.

The majority opinion in that case was that whether the case involves an injured person who is alive and whose life expectancy has been shortened, or the estate of an injured person who has died, the court should not recognize damage, nor award compensation, for the loss of earning capacity during the ‘lost years.’ President Y. Kahan, who wrote the leading majority opinion, said that an award of compensation for this head of damage meant a ‘minor revolution’ in the law of torts, and it was of significant economic consequences. President Kahan recognized that denying compensation to an injured person who is living for the ‘lost years’ may lead to an unjust result from the viewpoint of dependants, where at the time of death of the injured person he would not be entitled to compensation (either because he had been awarded compensation or because he received it in another way). This was because the provisions of s. 78 of the Torts Ordinance make the awarding of compensation to dependants conditional upon the injured person being entitled to compensation, when he passed away. However, President Kahan was of the opinion that there were no grounds for resolving this injustice by awarding compensation for the ‘lost years,’ since this, in itself, leads to other injustices that are even more serious. Consequently President Kahan held that the issue should be left to the legislature.

President Kahan further held that regarding earning capacity in the ‘lost years’ as an asset was ‘artificial,’ and so too was the reasoning making the award of the compensation conditional upon the injured person being unable to accumulate wealth and to make use of it as he sees fit. In President Kahan’s view, the ‘idea that a child who is killed in an accident suffers damage by being deprived of the possibility of working and earning throughout the whole period of a normal working life divorces the terms ‘pecuniary damage’ and ‘loss of an asset’ from their normal meaning and gives them an unrealistic meaning.’ President Kahan further thought that there were no grounds for extending the circle of supported persons beyond those persons specified by the legislator (namely the dependants), and he warned against a double payment to the estate and to the dependants and against a situation in which the compensation would fall into the hands of persons who suffered no damage, as an unjustified windfall. In summarizing his remarks, President Kahan said that ‘it is possible that the compensation for the head of damage of loss of life expectancy should be increased, and in this way expression should be given to the feeling of outrage against a situation in which, when the injury results in the death of the injured person, often the compensation does not at all reflect the seriousness of the injury.’ He further said that ‘it is possible that we should award, under the head of damage of pain and suffering, compensation for an injured person who is alive, for the suffering he endures as a result of his not being able to receive income and to make use of it as he sees fit.’

Vice-President M. Shamgar and Justice M. Bejski. each in his own words, joined with the opinion of President Y. Kahan.

9.    The opinion of Justice A. Barak, with which Justice S. Levin agreed, was different. Justice Barak thought that the court should recognize an entitlement to compensation under a head of damage of ‘the lost years’ — both in a claim of a living injured person and in a claim of the estate. Earning power, he said, is an asset that belongs to its owner, and a reduction in the working life expectancy of the living injured person amounted to an injury to this asset — an injury that ought to give rise to an entitlement to compensation. In this regard, Justice Barak thought, it makes no difference, nor is it the concern of the tortfeasor, whether the injured person can enjoy the compensation money or not. Even an injured person who as a result of a tort is in a permanent vegetative state — he emphasized — cannot enjoy any of the material benefits of this world, but he is entitled, according to case law, to compensation for loss of earnings. Policy considerations also, he held, support a conclusion that the loss of earnings of a living injured person in the ‘lost years’ should be recognized as damage that is compensatable. In this regard Justice Barak mentioned the case of dependants and persons who are supported without being dependants for whom the award of compensation for the ‘lost years’ will ensure that they are supported.

With regard to the estate, Justice Barak held that recognition of the right of the living injured person to compensation for the ‘lost years’ also leads, under prevailing law, to the recognition of the right of the estate to compensation under this head of damage. Moreover, the award of compensation to the estate for the ‘lost years’ means supporting various persons who are ‘dependants.’ The concern that the tortfeasor may be found liable to pay twice can be allayed — so Justice Barak held — by subtracting the amounts paid to dependants for loss of support from the compensation to the estate.

10. Since then, the issue of the ‘lost years’ has not been considered in this court on its merits, but the courts have relied on Estate of Sharon Gavriel v. Gavriel [1] in several cases (see, for example, CA 116/81 Estate of Aharon Knafo v. Arnon Tussia Cohen [6]; CA 248/86 Estate of Lily Hananshwili v. Rotem Insurance Co. Ltd [7]; CA 642/89 Estate of Meir Schneider v. Haifa Municipality [8]; CA 4022/98 The Technion, Israel Technological Institute v. Twister [9] (in this judgment the question of compensation did not arise with regard to the lost years of earnings, but with regard to other heads of damage in the ‘lost years’); see also CA 110/86 Gevaram v. Heirs of the late Shalom Manjam [10], at p. 199, in which Justice H. Ariel mentioned the rule in Estate of Sharon Gavriel v. Gavriel [1], and said that in that case he tended towards the minority view). It seems to me that the passage of time, the new trends in awarding compensation in Israeli law and the changes that have occurred in other legal systems all justify a re-examination of the rule that was decided in Estate of Sharon Gavriel v. Gavriel [1] by a majority of three judges to two. Indeed, the ‘book of judicial case law is open, and new chapters are written in it all the time. These are built on the past, reflect the present and form a basis for the future. Movement is unceasing. Change is perpetual’ (HCJ 693/91 Efrat v. Director of the Population Register at the Ministry of Interior [11], at p. 796).

Let us turn, therefore, to examine the reasons and the arguments that have been made — both for and against — with regard to the awarding of compensation for the loss of earning capacity in the ‘lost years,’ and let us begin with the claim of a living injured person.

Compensation for the ‘lost years’ of earning: claim of a living injured person

11. The opinion of Justice Barak in Estate of Sharon Gavriel v. Gavriel [1] was based both on ‘technical’ considerations — looking at the issue from the viewpoint of the injured person — and ‘policy’ considerations — mainly concerning persons supported by, and dependent on, the injured person. We too will follow this path that Justice Barak delineated.

The viewpoint of the injured person

Restitutio in integrum

12. It is not unusual that the life expectancy of a person, who is injured as a result of a tortious act, is shortened to less than the retirement age that he would have anticipated had the damage not occurred. In the past, medicine had difficulty in providing a diagnosis, with the degree of proof required in a civil trial, to the effect that the life expectancy of an injured person was shortened as a result of the accident. Consequently, compensation was awarded according to the normal life expectancy of the injured person. The significance of this is that, in practice, compensation was awarded also for the loss of earning capacity in the ‘lost years,’ although this was not for substantive reasons of principle but rather for reasons that were mainly technical and evidential.

The tools that are today at the disposal of scientists and doctors led to a significant change in this regard, and they often make it possible to prove, on a balance of probabilities, that the life expectancy of the injured person — and consequently also his working life expectancy — has been reduced (see J.G. Fleming, ‘The Lost Years: A Problem in the Computation and Distribution of Damages,’ 50 Cal. L. Rev. 598 (1962), at pp. 598-600). The result, somewhat paradoxically, is that in legal systems where compensation is awarded for loss of earnings according to working life expectancy after the accident (i.e., when the ‘lost years’ are not recognized), scientific advancement, and with it the possibility of proving a reduction of life expectancy, has reduced the amount of the damages awarded for the head of loss of earnings. In other words, in those legal systems that do not recognize a right to compensation for the lost years of earning, the proof of a reduction of life expectancy reduces the compensation for loss of earnings. The profits that the injured person could have made in the years of life that have been lost are not claimable in these legal systems. So we find that there are cases in which the tables are turned and it is actually the injured person who argues for a long life expectancy, whereas the tortfeasor argues for a significant reduction of life expectancy (see, for example, CA 2939/92 General Federation Medical Fund v. Rachman [12]; CA 4022/98 The Technion, Israel Technological Institute v. Twister [9]). Is this strange result consistent with the rules of awarding compensation in the law of torts? As will be seen, the answer to this is no.

13. There is no need to dwell upon the potential harm to the interests of the injured person and his way of life, as a result of a reduction of his life expectancy, and upon the suffering involved in a person knowing that he has lost years of his life expectancy that he would have had if he had not been injured by the tort. We are dealing with another potential outcome of the reduction of life expectancy, namely the harm to the earning capacity of the injured person in the ‘lost years.’

The remedial purpose underlying the awarding of damages in the law of torts is, as aforesaid, the removal of damage and compensation for it, in order to return the injured person, in so far as possible, to the position in which he would have been had he not been injured by the tort (see A. Barak, ‘Assessing compensation in personal injury: the law of torts as it is and as it should be,’ supra, at pp. 249-251). The awarding of compensation can be compared to a balance — an external balance and an internal balance. On one pan of the external balance lies a weight marked ‘before,’ which examines what the position of the injured person would be had the accident not occurred. On the other pan of the external balance lies a weight marked ‘after,’ which examines the position of the injured person in consequence of the accident. The compensation serves a single purpose — to balance the scales. To this end, one must also take into account the internal balance that are factors in the ‘after’ pan of the external balance. On one pan of the internal balance lies a weight marked ‘loss.’ One must examine the losses of the injured person as a result of the accident. On the other pan lies a weight marked ‘gain.’ One must examine the advantages and gains that the injured person has received — if any — as a result of the accident. Weighing the loss and the gain that were caused to the injured person as a result of the accident gives a complete picture of the injured person’s position after the accident, and allows this to be weighed against what the position of the injured person would have been had the accident not occurred. Only then is it possible to award the injured person an amount of damages that will correct the imbalance caused as a result of the accident. It is not for nothing that the English word ‘compensation’ comes from the Latin word compensatio, whose basic meaning is a ‘joint weighing’ of one thing against another.

14. From this ‘remedial’ outlook in the laws of compensation we derive the rule that where a person suffers damage as a result of a tort, and this is expressed in a loss of his earning capacity in comparison to the capacity he would have had if it had not been for the tort, the injured person has a right to compensation. The assessment of the compensation is made in accordance with the difference between the earning capacity of the injured person without the tortious act (if the tortious act had not occurred) and his earning capacity as a result of that act (CA 70/52 Grossman v. Roth [13], at p. 1251; CA 79/65 Israel Steel Enterprises Ltd v. Malca [14], at p. 270). We must therefore examine the difference between the earning capacity that the injured person had before the accident and the earning capacity that remains after the accident, taking into account his disability (see CA 5794/94 Ararat Insurance Co. Ltd v. Ben-Shevach [15]). This leads to the question: what difference is there between an injured person, who suffers an injury that deprives him of his earning capacity in its entirety, and an injured person whose life expectancy has been shortened and whose earning capacity in the ‘lost years’ has been lost? Both of these have lost their earning capacity, and they therefore claim pecuniary compensation that will place them — in so far as possible — in the position they would have been in had it not been for the tortious act. Had it not been for the accident, both the one and the other could have earned a certain amount that would have been used by them and their family members, but as a result of the accident they no longer have this possibility.

It appears, therefore, that in so far as ‘returning the injured person to his original position’ is concerned — from a study of the external balance — it is difficult to find a real reason that justifies a different attitude towards an injured person who lost his earning capacity but whose life expectancy remained as before, as compare with an injured person whose life expectancy has been shortened. With regard to the latter we should also examine the amount that he could have earned had the accident not occurred — i.e., the earning capacity that he would have had if it had not been for the accident, taking into account the life expectancy that he anticipated shortly before it occurred — and we should compare this amount with the amount that he is able to earn after the accident, taking into account the earning capacity and life expectancy that remain. The difference expresses the reduction in earning potential of the injured person as a result of the accident. The reason for this is that it is not possible to speak of earning capacity while ignoring the earning period. This was discussed by D. Katzir:

‘Awarding compensation, within the framework of “pecuniary damage” for loss of earning capacity, ought to reflect the full difference in the earning capacity of the injured person before the injury as compared with his earning capacity after it; this earning capacity, in the view of Justice Barak, constitutes an “asset that belongs to its owner”…, which entitles him to compensation in the event that he is injured. It is well-known that this capacity is a function of the length of the period in which it will find expression… no significant difference should be recognized between full loss of earning capacity resulting from the injury, and the full loss of certain years in which this capacity will not find expression. Just as in the first case the injured person is entitled to full compensation, so too is he entitled, in principle, to full compensation in the second case’ (Katzir, Compensation for Personal Injury, supra, at pp. 269-270).

It should be noted that the risks that the injured person faces, including the risk of a reduction of life expectancy, are taken into account in the compensation — negatively — only in so far as concerns the question of risks that would that he faced even before the accident. Where these risks are a function of the accident, there is no basis for deducting them from the compensation to which he is entitled. This is an ‘absolute rule’ that underlies the idea of returning the injured person to his original position. The outcome is that in awarding the compensation for loss of earning capacity, the life expectancy of the injured person before the accident should be taken into account.

15. A similar approach has been expressed also in the rulings of courts in other countries. For example, in Skelton v. Collins [106], the High Court of Australia held that:

‘… what is to be compensated for is the destruction or diminution of something having a monetary equivalent… I cannot see that damages that flow from the destruction or diminution of his capacity [to earn money] are any the less when the period during which the capacity might have been exercised is curtailed because the tort cut short his expected span of life’ (at p. 129).ב

In one case in the United States, the court considered the distressing case of a child who, when he was five years old, was infected with the AIDS virus as a result of an infected blood transfusion. His claim under the Federal Tort Claims Act was accepted, and the Federal Court awarded him compensation for the loss of earning capacity in the years of life that he could have anticipated, had it not been for the accident, after deducting from this amount the living expenses that he required in the ‘lost years.’ The court wrote in that case, with regard to awarding the compensation for the loss of earning capacity in the lost years of life:

‘Using a postinjury rather than a preinjury work life expectancy to calculate lost earning capacity would violate fundamental principles of the law governing damages and would produce an absurd and unjust result... the measure of damages for lost earning capacity is the amount by which the plaintiff's ability to generate earnings has been diminished as a result of the defendant's negligence. It should make no difference whether that diminution takes the form of a reduction in the salary the plaintiff is able to command or a decrease in the number of years the plaintiff is able to work. In either case the net result is that the ability to generate earnings is lessened because of the defendant’s negligence. Depriving a plaintiff of the right to recover for that portion of his loss attributable to a shortened work life expectancy would frustrate the objective of making the plaintiff whole. Moreover, it would permit the tortfeasor to benefit from the consequences of his own wrongful act at the expense of the innocent victim. Such a result would be inconsistent with both law and logic. Indeed, the weight of authority is that loss of earning capacity should be measured over the course of the work life expectancy the plaintiff would have had if no injury had been sustained’ (Doe v. United States (1990) [80]).ו

Similarly in England Justice Streatfield criticized the approach whereby the defendant may argue against the injured person, whose life expectancy has been shortened, that the latter has a right to compensation, for loss of earnings, only for the years that the defendant has left him:

‘If that indeed is the law, then I respectfully suggest that it would be very unjust, because, after all, the object of damages, as I understand them, is to do the best they can to compensate a man who has been injured, for what he has lost. What he has lost... is not only the ability to earn X Pounds a year, but the ability to earn it over that period of time that he might reasonably expect it’ (Pope v. D. Murphy & Son Ltd [133]).נ

16. It follows that the basic principle of the law of torts, according to which the compensation awarded should make the damage good and return the injured person, in so far as possible, to the position he would have been in had it not been for the tortious act, supports the awarding of compensation to the living injured person for the loss of earning capacity in the ‘lost years.’ This is because the loss of earnings is spread over units of time whose length is the length of the working life expectancy that the injured person had before the accident. The compensation for the ‘lost years’ is therefore capable of remedying the unequal state of affairs that was created as a result of the tortious act. It offers a solution to the injustice that is inherent in the denial of the right of compensation to someone who is not able to realize his earning capacity, because of a reduction of his life expectancy brought about by a tort, while at the same time compensation is awarded to someone whose inability to realize his earning capacity derives from his being injured by a tort. This results in it being cheaper to kill than to wound. It should be noted that we are not concerned with punishing the tortfeasor but with studying the balance and refraining from an unjust reduction of the compensation merely because of the fact that in addition to the harm to the injured person’s earning capacity the tortfeasor also caused him a reduction of his life expectancy.

In this spirit it has been held in the United States for many years that the loss of earning capacity of the injured person should be assessed according to the life expectancy that he anticipated before the injury, based upon an approach that there is no reason to reduce the pecuniary liability of the tortfeasor merely because of the extreme seriousness of the consequences of his acts (see Prairie Creek Coal Mining Co. v. Kittrell [81]; Littman v. Bell Telephone Co. of Pennsylvania [82]; Comment: The Measure of Damages for a Shortened Life, 22 U. Chi. L. Rev. 505 (1955), at p. 506. Especially apposite in this regard are the remarks of Judge Weinstein in In re Joint Eastern & Southern District Asbestos Litigation [83], at p. 428:

‘Calculating damages for lost earning capacity based on the victim’s pre-injury life expectancy has been criticized as overcompensating the plaintiff, because no deductions are made for his or her living expenses between the time of projected actual death and the time death probably would have occurred had there been no injury. It has been viewed, however, as the “lesser of two evils.” The alternative method of awarding damages based on the victim’s shortened life expectancy would, in effect, reward the defendant for having successfully injured the plaintiff so severely as to curtail his or her life span, and would under-compensate plaintiff’s dependents for the loss of support during those lost years’ (at p. 428).

We can already point out, and we will dwell on this below, that the difficulty inherent in over-compensation, which is raised at the beginning of Judge Weinstein’s remarks, is solved in most legal systems by means of a deduction of the living expenses that were required by the injured person in the ‘lost years’ from the amount of compensation.

17. It is accepted that the law of torts has another purpose, which sits alongside the purpose of doing justice, and that is to provide an effective deterrent (see CA 44/76 Atta Textile Co. Ltd v. Schwartz [16]; see also CFH 7794/98 Ravid v. Clifford [17]). The law of torts is regarded by many as a tool for furthering the goal of channelling the collective social benefit (for a general discussion, see I. Gilead, ‘On the scope of the effective deterrent in the law of torts,’ 22 Mishpatim 437 (1993)). This is achieved, inter alia, by creating a legal system that makes the tortfeasor act carefully by internalizing the consequences that follow from his actions. For this purpose, it is desirable that the tortfeasor should indeed pay for all the damage that he caused by the tort. The tortfeasor should pay, at least, the amount of the loss (L) in the Hand formula (see R.A. Posner, Economic Analysis of Law (fourth edition, 1992), at p. 176; for calculating the Hand formula, see United States v. Carroll Towing Co. (1947) [84]). Indeed, imposing compensation in an amount that exceeds the damage or an amount less than the damage is likely to lead to undesirable results. This was discussed by Polinsky and Shavell, who pointed out that in the system of liability for negligence, which relies on the Hand formula, it is important that the compensation is equivalent to the damage:

‘Under the negligence rule, if damages equal harm, potential injurers will be led to comply with the negligence standard… and thus to take appropriate precautions. If a precaution costing $50,000 would prevent a harm of $100,000, the threat of having to pay damages of $100,000 for not taking the precaution would induce a party to spend $50,000 on the precaution. However, if damages are less than harm, the negligence standard might not be met and underdeterrence would result. In the example, if damages are only $40,000 (even though harm is $100,000), the party would not be led to take the precaution costing $50,000’ (A.M. Polinsky & S. Shavell, ‘Punitive Damages: An Economic Analysis,’ 111 Harv. L. Rev. 869 (1998), at p. 882).

It follows from the aforesaid that if the tortfeasor is likely to pay compensation that is less than the damage caused, his deterrent is defective, and because of this he is likely to continue his undesirable activity, or to refrain from adopting precautions whose cost is less than the damage (see A. Porat, ‘Collective Responsibility in the Law of Torts,’ 23 Mishpatim 311 (1994)). This can undermine the goal of effective deterrent. In our case, denying compensation for the ‘lost years’ can create a situation in which, despite the serious damage caused as a result of the tortfeasor’s act, he will be exempt from the obligation to pay compensation for a significant part of the damage. There is no doubt that where the working life expectancy of the injured person is shortened, the damage of loss of earning capacity extends also to the ‘lost years.’ Leaving this damage without compensation means impairing the general deterrent.

Consider, by way of example, two tortious scenarios: in the first scenario, the tortfeasor causes the injured person, by means of a tort, a serious physical handicap, which deprives the injured person of any ability to work and earn money, even if his life expectancy is not shortened. In the second scenario, the tortfeasor, by means of a tortious act, causes, in addition to the serious physical handicap, also a reduction of the life expectancy of the injured person, and consequently to the injured person being unable to work and earn money. In so far as the loss of earning capacity is concerned, there is no substantive difference between the damage that the tortfeasor caused in the first scenario and the damage that the tortfeasor caused in the second scenario (on the assumption that the injured person is the same). In the two cases, the amount of the damage is the amount that the injured person expected to earn throughout the years of his working life that he would have had if it had not been for the accident (for the methods of calculating this amount, see, for example, CA 30/80 State of Israel v. Asher [18]; CA 722/86 Youness v. Israel Car Insurance Pool [19]). However, according to the approach that denies the right to compensation for the loss of earning capacity in the ‘lost years,’ there is likely to be a significant difference between the two scenarios, from the viewpoint of the amount of compensation for this damage; the tortfeasor in the second scenario will not be held liable for the full amount of damage that he caused by means of the tort, and therefore we cannot expect him to consider the consequences of his torts before he acts. The deterrent effect is, consequently, defective. But awarding compensation to the injured person for the loss of his earning capacity in the ‘lost years’ (while taking into account the expenses that the injured person is ‘saved’ during those years) will result in a full internalization of the costs arising from the tortfeasor’s acts.

It should be noted that the economic consideration that we have been discussing cannot decide the question before us. It can only add an extra dimension to the argument that denying compensation for the ‘lost years’ is problematic, in view of the guiding principles in the doctrine of compensation and in view of the accepted goals that the law of torts is intended to achieve.

Is it really true that ‘without life there is no loss of capacity’?

18. There are those who believe that in view of the fact that the injured person will not be alive during the ‘lost years,’ there is neither a need nor a justification for compensating him for loss of earning capacity in those years. According to this approach, ‘it is not earning capacity that the injured person has lost, but he has lost life itself, and without life there is no loss of capacity’ (see Oliver v. Ashman [134]; for a discussion of this argument see Estate of Sharon Gavriel v. Gavriel [1], at p. 548). This argument cannot be accepted. Alongside the loss of years, the injured person also lost the capacity to obtain income during those ‘lost years.’ We should remember that the law of torts does not purport — since it does not have the power needed to do this — to return the injured to his actual original position. ‘No money in the world can compensate for the suffering of the body and soul, the loss of opportunities to have a family, or the loss of the pleasures of a normal life. However, since what has been taken has been taken, and what has been lost has been lost, and it is not possible to return the injured person to his original position, and the compensation must be expressed in money, the money ought somehow to answer the question’ (see CA 541/63 Reches v. Hertzberg [20], at p. 126). ‘Returning the injured person to his original position’ — so it was written — ‘is not possible in the sense that the pain that has been suffered cannot be erased and the life expectancy that was reduced cannot be extended. But this does not prevent returning the injured person to his original position in a certain sense’ (A. Barak, The Law of Torts — General Principles of Torts (second edition, 1976, G. Tedeschi ed.), at p. 574). Indeed, the very nature of tortious compensation — especially when we are speaking of compensation for personal injury, and even more so when we are speaking of compensation for future damage — means that the compensation has something fictitious, speculative and artificial about it. Money cannot replace a damaged limb, the suffering involved in loss of a place of work, and it can certainly not replace years of life that have been lost. However, this alone cannot undermine the power of the courts to award compensation, in so far as this is necessary in order to bring the injured person as close as possible to the position he would have been in, had the damage not occurred. ‘Compensation will not bring the injured person back to life, but it will provide a pecuniary valuation of the pecuniary value of the loss’ (Estate of Sharon Gavriel v. Gavriel [1], at p. 551). The compensation will not prevent the suffering, but it can make the suffering bearable.

19. An injured person, who on account of a tortious act lost his life or had his life expectancy reduced, is entitled — and there is no dispute as to this in our legal system — to compensation for the non-pecuniary damage inherent in the loss or the reduction of life expectancy (see CA 773/81 Estate of Robert Freilich v. State of Israel [21]). Depriving the injured person of years of life — the ‘lost years’ — is considered, therefore, to be non-pecuniary damage that is compensatable. But this loss leads to another loss — the loss of income that would have accrued to the injured person from his work in those ‘lost years.’ According to this outlook, the injured person has lost an ‘asset,’ namely his work capacity, which was expected to bring him income. This was discussed by Justice Dickson of the Canadian Supreme Court, who said:

‘It is not loss of earnings but, rather, loss of earning capacity for which compensation must be made… A capital asset has been lost: what was its value?’ (Andrews v. Grand & Toy Alberta Ltd. [112], at p. 251).

This was repeated in the leading judgment of the House of Lords in Pickett v. British Rail Engineering Ltd [135], in which Lord Wilberforce criticized the approach that denied entitlement to compensation for the ‘lost years’ in this language:

‘Does it not ignore the fact that a particular man, in good health, and sound earning, has in these two things an asset of present value quite separate and distinct from the expectation of life which every man possessed?’ (at p. 149).

Indeed, when we are speaking of the damage of the loss of earning capacity, we are not speaking of a series of future losses, but of an immediate loss, here and now (see S.M. Waddams, The Law of Damages (loose-leaf edition), Toronto, Canada Law Book, 2003, at § 3.710). This was held in England (Pickett v. British Rail Engineering [135]), in Canada (Andrews v. Grand & Toy Alberta Ltd. [112]; The Queen in right of Ontario v. Jennings [113]), in Australia (see Skelton v. Collins [106]) and in the United States (for the approach accepted there, see Mclaughlin v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., (1966) [85]).

20. In this respect, we should reconsider the theoretical and practical distinction between compensation for loss of earnings and compensation for loss of earning capacity. If we are speaking of compensation for loss of earnings, then the only question is what would the injured person have earned in practice, had it not been for the accident. Thus, for example, a person who is a qualified engineer, who does not work but cares for his children, is not entitled, according to this approach, to compensation for the head of loss of earnings. This is not the case according to the outlook that regards earning capacity as a valuable asset, which, if taken away from its owner, is compensatable damage. According to this approach, the compensation is given after taking into account what the injured person could have earned, had it not been for the injury. Thus, for example, a woman who is a qualified lawyer, is entitled to compensation in accordance with this qualification, even if at the time of the accident she did not work as a lawyer nor even intended to work as such (J. Cassels, Remedies: The Law of Damages (2000), at p. 125).

It should be noted that in Israeli law (as well as in other legal systems) the distinction between loss of earnings and loss of earning capacity is not always observed, and it appears that case law moves on both tracks at the same time, or perhaps it is more correct to say — on a middle track (see also Katzir, Compensation for Personal Injury, supra, at pp. 257-258). Thus, for example, the willingness to award compensation to a child for loss of earnings reflects an approach that recognizes loss of earning capacity as compensatable damage. Moreover, in one case Justice Y. Shilo expressed the opinion that:

‘The tortfeasor must [therefore] compensate a person for a reduction in working capacity as a result of a wound, for which he is responsible, and it makes no difference whether the reduction in work capacity leads in the future to a reduction in income or not. The damage that requires compensation is the damage to the person’s capacity to work for remuneration, according to the scope determined at the time of giving the judgment, and the arguments of the tortfeasor that the injured person in any event does not make use of this capacity nor will he do so in the future will not be heard’ (CA 237/80 Barsheshet v. Hashash [22], at p. 296).

Justice Barak, on the other hand, preferred the ‘tangible’ approach, according to which:

‘The value of the earnings that the injured person would have made in the future had it not been for the accident is determined in accordance with the personal details of the injured person, taking into account his desires and intentions. The test is not according to theoretical earnings, which he was likely to earn if he had used all of his abilities. The test is according to tangible earnings, which he was likely to earn by using his abilities in practice. It follows that if for any reason the injured person does not make use of his ability in the present or in the future, there is no injury to his capacity, since this capacity is not utilized in practice’ (ibid., at p. 300).

Therefore Justice Barak held that ‘for compensation of loss of earning capacity one must point to the existence of a possibility, which is not merely hypothetical, that the injured person would have had earnings in the future, had it not been for the accident, and that the accident harmed these earnings’ (ibid., at p. 307).

It appears that the proper approach is the one delineated by Justice Barak. According to this approach, the harm to earning potential is, indeed, compensatable damage, provided that there exists a possibility, which is not negligible or completely speculative, that this potential would have been realized. But in any case, there is no dispute that the earning potential is an asset that belongs to its owner. The earning potential, in this sense, reflects the ‘economic horizon’ of the injured person, and the compensation for loss of earning capacity in the ‘lost years’ is intended to compensate the injured person for the reduction of this horizon (see In re Joint Eastern & Southern District Asbestos Litigation [83], at p. 427). The assessment of the loss is another question.

21. As an additional remark on this subject, the statement of Lord Justice Pearce in Oliver v. Ashman [134], that ‘what is lost is an expectation, not the thing itself’ seems to me problematic. Whenever we speak of loss of earning capacity, we are speaking of the loss of an expectation. The loss of capacity means a loss of the expectation or possibility of realizing the capacity, and this, in fact, is ‘the thing itself.’ Similarly, the approach shown by Lord Justice Pearce, ibid., that one cannot speak of loss of earnings when a person died early, because ‘he is no longer there to earn them, since he had died before they could be earned’ seems to me problematic. Even a person who is paralyzed in his four limbs but remains alive is not ‘there’ in order to earn income, since he was injured before he could earn it. The same is true of any person whose earning capacity is impaired. Indeed, it is not life or death that determine the issue, but the capacity to earn income. In this respect another question arises, namely whether the fact that the injured person cannot enjoy the compensation during the lost period can deny his right to receive it. This question will be considered now.

Is it really true that when there is no benefit from the compensation there is no compensation?

22. Depriving the injured person of years of life, which harms his ability to earn, is, therefore, an impairment of his earning capacity, which is an asset that belongs to its owner. Should this injury be left without compensation, merely because the injured person cannot, because of his anticipated death, enjoy the compensation? The answer to this is no.

In Oliver v. Ashman [134] Justice Wilmer wrote the following:

‘For what has been lost by the person assumed to be dead is the opportunity to enjoy what he would have earned, whether by spending it or saving it. Earnings themselves strike me as being of no significance without reference to the way in which they are used’ (at p. 240)

Another approach in this matter was stated by Justice Barak in Estate of Sharon Gavriel v. Gavriel [1]:

‘It is true that the injured person who is living will not himself be alive during the lost years and will not be able to use the income that he will receive, but this is of no significance, since the question is not what use the injured person will make of his money in the future but what use has he been prevented from making. As a result of the tortious act, the injured person’s ability to do what he wishes with his income has been impaired… the pecuniary compensation cannot return to the injured person life itself, but it can return to him the pecuniary value of his earning capacity that was impaired’ (Estate of Sharon Gavriel v. Gavriel [1], at p. 548).

23. Admittedly, the assumption is that the injured person will not be fortunate enough to live during the ‘lost years,’ and therefore he cannot enjoy the compensation money for the loss of income in those years. But this is of no significance. Just as we compensate the injured person or his estate for the non-pecuniary damage involved in the reduction or loss of life expectancy, and just as we compensate the injured person who is in a permanent vegetative state or who lost in some other way the ability to derive enjoyment from the compensation money (see Naim v. Barda [3], at pp. 783-784; Barak, ‘Assessing compensation in personal injury: the law of torts as it is and as it should be,’ supra, at p. 259; see also CA 141/89 Mahmoud v. Shamir Insurance Co. Ltd [23]; Lim Poh Choo v. Camden & Islington Area Health Authority (1980) [136]), so too we should not refrain from awarding compensation to an injured person who is alive for the lost years of earning:

‘For the purpose of determining the “compensatable damage” — as distinct from determining the amount of the compensation — it is not important, nor does it concern the tortfeasor, whether the injured person can enjoy the money that he received or not… just as an injured person who is in a permanent vegetative state cannot realize his income in the lost years, so too the injured person who is alive; and like the injured person who is in a permanent vegetative state he is entitled, notwithstanding, to compensation for loss of earnings in these “lost years.” Moreover, even if the injured person who is alive cannot use his income “during the lost years,” he can make use of his income for the “lost years,” in order to ensure that after his death the purposes that are important to him will continue as they would have continued if he had continued to live and work’ (Estate of Sharon Gavriel v. Gavriel [1], at p. 550).

Take the case of someone aged 50, who works for his living and is expected to continue to do so until the age of 65. This person is reduced to a permanent vegetative state as a result of a tortious act, and his doctors predict his life expectancy to be two years, during which he will remain in the permanent vegetative state and will not open his eyes. According to the prevailing law, this person will be entitled to compensation for the two years during which he will lie in hospital, unconscious, but he will not have a right to compensation for the thirteen years of earning that he would have had but will no longer have. This result is devoid of justice and logic.

The remarks of S.M. Waddams in his book The Law of Damages, supra, are apposite here:

‘Many would say instinctively that a person cannot be said to suffer a financial loss during a period when the person will not be alive to enjoy the use of any compensation that might be awarded for lost earnings. However, this view would lead also to the denial of recovery in the case of a plaintiff rendered permanently unconscious for of such a person it can also be said that the person will not be able to enjoy the use of compensation’ (at § 6.800).

            In Croke v. Wiseman [137], Justice Shaw brought an example which, even though it is not identical to our case, serves to emphasize the claim that the question of the injured person’s capacity to enjoy the compensation money is irrelevant to the actual entitlement to the compensation: a very wealthy person whose leg was amputated in an accident will not derive any profit or benefit from the compensation money that his existing resources cannot provide him. But the fact that the compensation money does not give him anything does not deny him of the actual right of receiving it (ibid., at p. 863).

24. Moreover, even if the heirs benefit from the compensation rather than the injured person, this is not a matter for the law of torts to concern itself with. It is merely a consequence of the laws of inheritance. In any event, there is no difference, in this respect, between the compensation for the loss of earnings in the ‘lost years’ and any other compensation to which the injured person is entitled and which passes to his heirs when the injured person passes away (Estate of Sharon Gavriel v. Gavriel [1], at p. 552). Thus, for example, in a case where the injured person was caused pain and suffering as a result of the tortious act, he is entitled to compensation for pain and suffering, and when he dies this right passes to the estate (see, for example, CA 384/74 Estate of David Azoulay v. Vulcan Casting Enterprises Ltd [24], where the injured person was severely burnt in a work accident and suffered extreme pain for four days before he died, and the court awarded his estate compensation for pain and suffering and a reduction of his life expectancy; see also CA 2376/93 Estate of Michal Kedar v. HaSneh Insurance Co. [25]; and cf. s. 4 of the Compensation Law and r. 4 of the Road Accident Victims Compensation (Calculation of Compensation for Non-Pecuniary Loss) Regulations, 5736-1976). It follows therefore that the estate does not obtain a ‘windfall.’ This was discussed by Waddams in The Law of Torts, supra:

‘… it can be said that this kind of windfall is an inevitable consequence of the survival of actions legislation. Once the old rule is abandoned and it is accepted that a personal action survives, it inevitably follows that a deceased’s estate will receive what some might describe as a windfall. Indeed the real cause of the enrichment is not even the legislation but the very concept of inheritance of wealth’ (at § 6.860).

25. Therefore our conclusion is that the assumption that the injured person will not be alive in order to enjoy the compensation money for the ‘lost years’ cannot undermine the actual right to compensation. The compensation reflects the loss of the injured person’s capacity to earn money and to do with his income what he wishes, and the tragic fact of the injured person’s untimely death does not negate this loss.

It is appropriate to end this part of the judgment by citing the remarks of Lord Wilberforce, who expressed the other approach, according to which the lack of capacity to enjoy the lost profits denies the right to compensation, in language that puts into clearer perspective the difficulty of that approach:

‘Nothing is of value except to a man who is there to spend or save it. The plaintiff will not be there when these earnings hypothetically accrue: so they have no value to him’ (Pickett v. British Rail Engineering (1980) [135].

The determination is forceful, but problematic.

The dependants’ perspective

26. Another question of great importance, which we have already hinted at above, concerns the dependants of the injured person whose life expectancy has been shortened. Indeed, hitherto we have considered the question of compensating an injured person who is living for loss of his earning capacity in the ‘lost years’ mainly in the light of the remedial purpose of the law of torts. The considerations that we discussed derive from a desire to improve the injured person’s position and to remove the damage — in so far as this is possible by means of pecuniary relief. These considerations seek to return the injured person to his original position. They are based on an outlook that recognizes the right to compensation for that loss, despite the particular dimension of objectivity inherent in this damage, i.e., the compensation is given to the injured person for the damage of losing the capacity to derive income in the ‘lost years’ even if he himself is not expected to live during those years and to enjoy the compensation. But these considerations — the ‘technical’ considerations in the words of Justice Barak in his opinion in Estate of Sharon Gavriel v. Gavriel [1] — do not stand alone. Alongside them are additional considerations — which are social in essence (policy considerations). These found expression in Estate of Sharon Gavriel v. Gavriel (1), both in the minority opinion and in the majority opinion, and they have guided case law in other countries. We are concerned here with the need to provide a proper solution for the dependants of the deceased injured person, who find themselves, in certain cases, helpless — without support and without compensation.

27. Before we enter into this question in detail, we should first outline, in brief, the statutory framework with regard to the effect of the death of an injured person on liability in torts. When a person who was injured by a tort dies, a right of claim may accrue both to the estate and to his dependants. With regard to the estate, the Torts Ordinance tells us that when a person dies, all the causes of action arising from torts that were available to the deceased continue to be available to his estate (s. 19(a) of the Ordinance). In other words, the rights that a deceased injured person had to sue the tortfeasor, both for pecuniary loss and for non-pecuniary loss, survive if they have not been exhausted, and pass to his heirs (see CA 148/53 Penetz and Egged Operative Group Ltd v. Feldman [26], at pp. 1716-1717). It should be noted that in England a different approach was originally accepted, according to which personal claims for a tort did not survive the death of the injured person or of the tortfeasor, even if the death of the injured person was caused by the tortious act (actio personalis moritur cum persona). This approach sustained criticism from every direction, until in 1934 the law was changed by the enactment of the Law Reform (Miscellaneous Provisions) Act 1934, which provided for the ‘inheritance’ of rights and debts as aforesaid by the estate (a similar development began in Canada in the province of Ontario in 1886, within the framework of The Revised Statute respecting Trustees and Executors and the Administration of Estates).

Section 19 of the Ordinance further provides that where the act or omission that created the cause of action is also what led to the death of the injured person, ‘the compensation that can be recovered by the estate shall be calculated without taking into account the loss or profit caused to the estate as a result of the death…’ (s. 19(b)). The logic underlying this provision is that the claim is not that of the heirs, but of the deceased. An exception to this is funeral expenses, which may be paid (end of s. 19(b)). It is further provided in s. 19 of the Ordinance that the rights granted to the estate are not intended to add to the rights granted to the dependants of the deceased nor to derogate from them (s. 19(d)).

28. The dependants of the injured person have an additional — independent — claim, where the tortious act led to the death of the injured person (see ss. 78-81 of the Ordinance, which provide an arrangement similar to the English law, the Fatal Accident Act, 1846, and subsequently the Fatal Accident Act, 1976). The dependants, who are the spouse, parents and children of the deceased, are entitled to compensation for the pecuniary loss that they suffered as a result of his death (ss. 79 and 80 of the Ordinance; CA 482/89 Estate of Sarah Abir v. Ferber [27], at p. 109; CA 506/82 Sontag v. Estate of David Mendelsohn [28]). The tortfeasor must compensate the dependants of the deceased for the loss of the economic support to which they had an expectation, had the deceased remained alive (CA 64/89 Gabbai v. Lausanne [29]). It should be noted that not all damage caused to the dependants is compensatable, but only the pecuniary damage involved in the loss of pecuniary support deriving from their family dependence on the deceased (CA 206/87 General Federation Medical Fund v. Estate of Dr Meir Edison [30], at pp. 79-80; FH 24/81 Honovitz v. Cohen [31], at p. 420). The amount of this damage is usually determined by means of the parts method, which expresses an accepted factual presumption (CA 32/60 Felixberg v. General Manager of the Railway [32]). The court discussed the principles that apply with regard to a claim of dependants in Ararat Insurance Co. Ltd v. Ben-Shevach [15]:

‘In a claim made by dependants, the loss of support that will be awarded to them is also derived from the earning capacity of the injured person (the deceased). They are entitled to the loss caused to them as a result of the death of the deceased, who supported them, namely their share in the family “pie” from which they would have benefited, if the deceased had not died. In order to determine this loss, we must determine what would have been the earning capacity of the deceased if he had not died as a result of the accident. Just as in the case where the plaintiff is harmed as a result of being injured in an accident he should be awarded the pecuniary damage caused to him as a result of the accident, including the loss of earning capacity (s. 76 of the Torts Ordinance [New Version]), so too the dependants are also entitled to the “pecuniary loss that they actually suffered or will actually suffer in the future,” as stated in s. 80 of the Ordinance’ (ibid., at p. 494).

29. Section 78 of the Ordinance provides a qualification that the right of the dependants to compensation arises only where the tort caused the death of the person upon whom they were dependent, and that person was entitled, at that time, to compensation. This means that although the right of the dependants to receive compensation from the tortfeasor is an independent right, distinct from the right of the deceased, it is still conditional upon the fact that, had he not died, the deceased would have himself had the right, within the framework of a claim against the tortfeasor, to compensation for his damage (Gabbai v. Lausanne [29]). Only when the injured person died before realizing his right to receive compensation for his damage is the way paved for the dependants to make a claim (the law in England and many other countries is similar; see, for example, Pickett v. British Rail Engineering [135]).

This is the root of the problem, as described by Justice Barak, in Estate of Sharon Gavriel v. Gavriel [1]:

‘The accepted approach is that the right of the dependants is conditional upon the fact that upon the death of the injured person (“at that time”) he is entitled to compensation for the tort that was done to him. Therefore, if the injured person realized his right during his lifetime, whether by means of a judgment or by means of a waiver or in another way, he no longer has at the time of his death any right to compensation, and consequently the right of the dependants does not come into being… it follows that if the injured person who is living does not receive compensation, within the framework of his own claim, for loss of earnings in the “lost years,” this will seriously harm his dependants. Indeed, according to this approach, the sole hope of the dependants is — and how macabre this hope is — that the living injured person does not file a claim during his lifetime, or if he files a claim, that he will “succeed” in dying before his claim is tried’ (ibid., at p. 553).

Indeed, if compensation for the ‘lost years’ is not awarded, the result obtained from the provisions of s. 78 of the Ordinance, in cases where the deceased does not have, when he died, a claim for compensation, is, from the viewpoint of the dependants, harsh and unjust. Take the case of a person who had a working life expectancy of twenty years, and because of a tortious act his life expectancy is reduced to only two years. The vast majority of the potential earning years, which will not be realized because of the act of the tortfeasor, will not be given any expression in the award of compensation, and the dependants, even if they inherit what he was awarded in his claim, will be left with an empty shell, unless the injured person chose — and to put such a choice before him is inconsistent with criteria of justice and logic — not to file a claim for his damage.

We should remember that the injured person frequently needs the compensation money as early as possible, in order to alleviate his pain and to provide for his needs and those of his family that arise from the damage of the accident. The choice of the injured person to file a claim for his damage should not harm, from a global perspective, his interests and those of his dependants.

30. It appears that the main logic underlying the denial of the possibility of compensation to the dependants, in cases where the injured person realized his right to compensation, is the fear of double compensation. But this fear arises only where the injured person himself has been compensated for loss of earnings in the ‘lost years,’ since this is the ‘area of conflict’ between the rights of the dependants and the rights of the injured person. If this is so, the source and logic of s. 78 of the Ordinance lie in a legal reality where compensation is awarded to the living injured person according to the full working life expectancy that he had before the accident. This is exactly what Fleming discusses:

‘With few exceptions… this conflict has generally been resolved by subjecting the interests of the [dependants] to the risk of extinction by a prior recovery of the deceased, in the assumed prospect of double liability. This fear would be warranted, however, only if the award to the decedent included compensation for his loss of earnings during the period by which his life has been curtailed, for this segment alone corresponds with the expectancy of support to which his dependants may lay claim in a wrongful death action’ (Fleming, ‘The Lost Years: A Problem in the Computation and Distribution of Damages,’ supra, at pp. 598-599).

See also In re Joint Eastern & Southern District Asbestos Litigation, at p. 429.

31. The conclusion is that the provisions of s. 78 of the Ordinance in our law of torts are inconsistent unless compensation is awarded to the living injured person for the ‘lost years.’ Here it should be emphasized, parenthetically, that this is not the only place where one can find, in the Israeli law of torts, ‘footprints’ of an award of compensation for the ‘lost years.’ Below we will discuss additional footprints when we consider Estate of Lily Hananshwili v. Rotem Insurance Co. Ltd [7]. I would now like to address an additional provision in the arrangement for periodic payments prescribed in the Compensation Law with regard to claims being considered within the framework of that law. Section 6 of the Compensation Law authorizes the Minister of Justice to enact in regulations the ‘power of the court to decide that the compensation for loss of earning capacity and continuing expenses, in whole or in part, shall be paid in periodic payments…’ and also ‘the right of dependants of an injured person who died after he was awarded periodic payments.’ Indeed, the power of the court to award periodic payments for the heads of loss of earning power and continuing expenses was regulated in the Road Accident Victims Compensation (Periodic Payments) Regulations, 5738-1978. Regulation 3 provides:

‘Right of dependants

3. (a) If an injured person dies after he has been awarded periodic payments, dependants who were completely or partially supported by him before his death shall be paid a pension in the following percentages of the amount awarded, provided that the total of all the pensions does not exceed the amount awarded:

     …’

Thus we see that where someone is injured in a road accident and his life expectancy is shortened, the court may award him compensation by way of a periodic payment, and in such a case the aforesaid r. 3 ensures that after the death of the injured person pensions are also paid to his dependants. This duty to pay the dependants of an injured person who died is not subject to discretion, and it arises whether the injured person died as a result of the accident or not. The sole requirement stipulated in the regulation is that the injured person passed away after he was awarded periodic payments. This regulation, in the context, constitutes a partial solution to the problem of the ‘lost years,’ and it can be said that ‘we can see from it a legislative trend that dependants of a living injured person will be entitled to compensation upon his death, notwithstanding the fact that before he died the injured person won damages of his own’ (Justice Barak in Estate of Sharon Gavriel v. Gavriel [1], at p. 556). Indeed, there are some who believe that the best way to ensure, on the one hand, the freedom of the injured person to do with his money as he sees fit, and, on the other hand, the support of the dependants, is to determine some mechanism of periodic payments, whereby starting from the date of the injured person’s death, the payments will be transferred to the dependants (see, for example, P. Cane & D. Harris, ‘Legislation,’ 46 The Modern L. Rev. 478 (1983), at p. 481).

It should be noted that the interest of dependants of an injured person in a road accident, who died before he realized his cause of action, is not subject to the provisions of s. 6 of the Compensation Law, and it is regulated within the framework of s. 78 of the Ordinance (with regard to the power to award periodic payments for dependants of the deceased who has not been awarded a pension, see CA 778/83 Estate of Sarah Saidi v. Poor [33]; for a general discussion, see also D. Moore, ‘Periodic Payments to Victims of Road Accidents,’ 6 Tel-Aviv University Law Review (Iyyunei Mishpat) 645 (1978)).

32. Let us return, then, to the provisions of s. 78 of the Ordinance. The anomaly that is created as a result of the provisions of this section, as described above, is not only the law in Israel, but it underlies the uncertainty of the courts in England on the question of compensation for the ‘lost years.’ In the past, the courts there adopted an approach whereby the amount of compensation was determined in accordance with the lifespan that the injured person anticipated before he was injured in the accident (see Phillips v. London & South Western Railway Co. [138]; Roach v. Yates [139]). Several judgments that dealt with this in the middle of the twentieth century presented different approaches to the subject (see Pope v. D. Murphy & Son Ltd [133], according to which compensation should be awarded for loss of earning capacity according to the life expectancy before the accident, and, by contrast, Harris v. Brights Asphalt Contractors Ltd [1953] 1 Q.B. 617, in which the view expressed was that compensation should not be awarded for the ‘lost years’). In 1962 the approach that denies entitlement to compensation for the ‘lost years’ became established; it found expression in the judgment of the House of Lords in Oliver v. Ashman [134]. In the words of Lord Justice Wilmer:

‘For what has been lost by the person assumed to be dead is the opportunity to enjoy what he would have earned, whether by spending it or saving it. Earnings themselves strike me as being of no significance without reference to the way in which they are used. To inquire what would have been the value to a person in the position of this plaintiff of any earnings which he might have made after the date when ex hypothesi he will be dead strikes me as a hopeless task’ (at p. 240).

The ruling in Oliver v. Ashman [134] was adopted also in other cases (see Wise v. Kaye [141]), but it was strongly criticized, especially in view of its serious consequences from the viewpoint of dependants, whose right to claim for loss of support arose only where at the time of the injured person’s death he had a right of claim against the tortfeasor (see D. Howarth, Textbook on Tort (Butterworths, 1995), at p. 613). The difficult result arising from the ruling in Oliver v. Ashman [134] is that the injured person, who is living and who files an action in torts, is unable to recover for the loss of future earnings, even though if he had not fallen victim to the tortious act, he would, it may be assumed, have earned a sum of money which he would have used for various purposes, including the support of his family. At the same time, the filing of the claim by the living injured person raises an insuperable barrier preventing the family members from suing, independently, for the damage they have suffered, i.e., the loss of support. In this sense, a dead injured person is better than a live one. This result brings with it severe consequences from a social viewpoint. A tangible example of this was seen in McCann v. Sheppard [142], where a young man aged 24 was injured in a road accident, and he filed a claim for compensation in consequence. While the action was pending, the injured person married and fathered a child. In the judgment, he was awarded compensation in an amount of £15,000 for loss of earnings in the future. The defendant filed an appeal on the amount of the compensation, but then the injured person died as a result of taking an overdose of painkillers. In view of the fact that the injured person had died, the court of appeal ordered the compensation to be reduced, on the head of loss of earnings, to a sum of only £400. Thus the widow and the son were left without support.

The criticism of the ruling in Oliver v. Ashman [134] did not escape the attention of the Law Commission, which convened in order to suggest possible ways of correcting the state of affairs. In brief, the Commission recommended the following three possible solutions: (1) changing the ruling in Oliver v. Ashman [134] by means of legislation and awarding compensation for the ‘lost years,’ while deducting the expenses that the injured person would have incurred for his subsistence during those years; (2) recognizing the right of the dependants to compensation-support even if the injured person received compensation during his lifetime; (3) filing the claim of the dependants and the claim of the injured person simultaneously, and payment of a certain sum into court, which will be paid to the dependants after the death of the injured person. The Commission recommended the first solution, saying that notwithstanding the existence of a possibility that the injured person would make use of all the compensation monies and would not leave anything for the dependants, it should not be assumed that many injured parties will indeed do this, and in any event, so the Commission thought, the balance of advantages and disadvantages tips the scales in favour of this solution, which can be implemented most simply and is the closest in principle to the manner in which tortious compensation is awarded — i.e., paying it to the injured person himself (for an analysis of the considerations for and against each of the solutions, see Report on Personal Injury Litigation — Assessment of Damages, Law Com. 56, at pp. 17-24; see also the remarks of Justice Barak in Estate of Sharon Gavriel v. Gavriel [1], at p. 553, and the remarks of President Kahan, ibid., at p. 571).

Albeit, the Commission’s recommendation did not find expression in legislation, but in 1980 the first solution was adopted by the House of Lords, in Pickett v. British Rail Engineering [135]. That case concerned a person who contracted cancer as a result of exposure to asbestos, and his life expectancy was shortened to approximately one year only. He died after the judgment of the trial court was given in a claim that he filed, but before the appeal was heard. His widow continued the proceeding, which reached the House of Lords. The House of Lords overturned Oliver v. Ashman [134] and recognized the head of loss of earnings in the ‘lost years.’ This was both for the legal reason that the plaintiff, whose life expectancy was shortened, suffered immediate damage of loss of earning capacity, and for the social reason that the dependants should not be left without compensation. From then until now, the ruling in this matter has not changed, and the courts in England award the living injured person compensation for the years in which he could have worked and earned money had his life expectancy not been shortened by a tort (it should be noted that the Supreme Court of Canada had already ruled in 1978 that it was not prepared to adopt the rule in Oliver v. Ashman [134] (see Andrews v. Grand & Toy Alberta Ltd. [112]; the same was held by the High Court of Australia, in 1966: see Skelton v. Collins [106]).

33. In the United States the difficulty inherent in the two sides of the question has also been recognized. On the one hand, a legal system which does not recognize a head of the ‘lost years’ and which denies the right of the dependants to file a claim for their damage leads to a result in which the tortfeasor benefits from the fact that he shortened the life expectancy of the injured person. On the other hand, a legal system in which compensation is awarded for the lost years of earnings and the personal claim of the injured person does not create a barrier to a claim by the dependants means that the tortfeasor will be liable for a double payment. So what is the solution? Most of the States have accepted the approach that in the personal claim of the injured person for loss of earning capacity, the working life expectancy that he had prior to the accident is taken into account (see, for example, In re Joint Eastern & Southern District Asbestos Litigation [83], at p. 429; Morrison v. State [86], at p. 406; Borcherding v. Eklund [87] at p. 650; Crecelius v. Gamble-Skogmo, Inc. [88]; Burke v. United States [89]; Fein v. Permanente Medical Group [90]; Doe v. United States [80]). The United States Supreme Court discussed the rule prevailing in this matter in the United States in the following manner:

‘Under the prevailing American rule, a tort victim suing for damages for permanent injuries is permitted to base his recovery “on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury”.’ (Sea-Land Services, Inc. v. Gaudet [91] at p. 594).

In order to prevent double compensation, in those countries they do not allow a claim for wrongful death in cases where the injured person has realized his personal claim, or the claim for wrongful death is set off against the amount paid in the personal claim (see In re Joint Eastern & Southern District Asbestos Litigation [83], at p. 430; Fleming, ‘The Lost Years: A Problem in the Computation and Distribution of Damages,’ supra, at p. 614).

However, in several judgments the courts in the United States held that in a personal claim of the injured person, the amount of the compensation for loss of earning capacity should be determined according to the life expectancy that he has after the accident (see Ehlinger v. State [92] at p. 792; Hughes v. Chicago, R.I. & P. Ry. Co., 129 N.W. 956 (1911)). But this position does not stand alone, because in those places where this was held, it appears that they have adopted the opinion that the personal claim of the injured person cannot prevent the possibility of filing an action for wrongful death after the death of the injured person (see In re Joint Eastern & Southern District Asbestos Litigation [83], at p. 430; Doe v. United States [80]).

It follows from all of the above that even in the United States, both according to the majority opinion and according to the minority opinion, the dependants are not left, as a rule, without support. The harm to the injured person’s income in the ‘lost years’ finds expression in the award of compensation, whether this is done in the personal claim of the living injured person, or whether it is done in a claim within the framework of the wrongful death laws.

34. In Estate of Sharon Gavriel v. Gavriel [1], President Y. Kahan, who wrote the leading majority opinion, was aware of the difficulty that we have discussed, from the viewpoint of the dependants, and he pointed out that ‘such a situation can cause injustice.’ Similar remarks were made by the other majority judges, Justice Bejski (ibid., at pp. 578-579) and Vice-President Shamgar (ibid., at pp. 576-577). But this problem, so the majority opinion judges thought, should be remedied by way of a change in legislation, and not by awarding compensation for the ‘lost years,’ since the latter involved miscarriages of justice of its own.

But the legislator tarries. Although more than twenty years have passed since the judgment was given in Estate of Sharon Gavriel v. Gavriel [1], the injustice remains as it was. It should be noted that there are, admittedly, legal systems in which the awarding of compensation to the living injured person, for loss of his earning capacity in the ‘lost years,’ is done pursuant to an express statutory provision. This is the case, for example, in Scotland. The Damages (Scotland) Act provides, in s. 9, that in assessing the damages of the living injured person it should be assumed that his life expectancy is at it was before the damage occurred. But such an express statutory provision is not essential. In many countries, it is case law that has recognized the damage arising from the loss of earning capacity in the ‘lost years’ as compensatable damage. This, as we have seen, is how the law has developed in England (see Pickett v. British Rail Engineering Ltd [135]; M.A. Jones, Torts (eighth edition, 2002) at pp. 682-683). This is also the case in most States in the United States (see Sea-Land Services, Inc. v. Gaudet [91], at p. 594, and the discussion supra), and in Canada, where the courts have recognized the entitlement of the living injured person to compensation for the ‘lost years’ (see Andrews v. Grand & Toy Alberta Ltd. [112]; The Queen in right of Ontario v. Jennings [113]; Sigouin (Guardian in litem of) v. Wong [114]; Dube v. Penlon Ltd. [115]). The courts in Australia have followed a similar path (see Skelton v. Collins [106]; F. Trindade & P. Cane, The Law of Torts in Australia (third edition, 2001) at p. 519), and so has case law in New Zealand (see S. Todd et al., The Law of Torts in New Zealand (1991) at p. 881) and in Ireland (see Doherty v. Bowaters Irish Wool Board Ltd [160]; Conley v. Strain [161]).

In other countries, case law has pursued a different path. Thus, for example, in South Africa, the right to compensation for the head of damage for the ‘lost years’ has been recognized (see Goldie v. City Council of Johannesburg [164]), but it was held afterwards that for the purpose of compensation for the loss of earning capacity, the life expectancy remaining to the injured person after the accident was what should be examined (see Lockhat's Estate v. North British and Mercantile Insurance Co. Ltd [165]).

35. It can be seen that, even though there is no unanimity on the issue of the ‘lost years,’ it is possible to say that in many countries case law has recognized the entitlement of the living injured person to compensation for the ‘lost years of earning.’ A change in legislation is therefore not essential. The award of compensation for the loss of earning capacity in the ‘lost years’ will find a strong basis in the principles of compensation that have been accepted in Israel, as in other legal systems, for many years. The need to realize the goal of returning the injured person to his original position and the need to solve the difficulties arising from the current legal position justify a change in the prevailing case law on this issue. As for the injustices and difficulties involved, allegedly, in awarding compensation for the loss of earning capacity in the ‘lost years,’ these, as we have already said and as we shall explain below, can be solved.

Deduction of expenses

36. One of the objections raised against awarding compensation for the loss of earning capacity in the ‘lost years’ is that, alongside the income that the plaintiff was deprived of in those years, he has ‘saved’ himself the expenses that he would have incurred in those years. It is indeed true — so it is claimed — that the plaintiff would have had earnings as a result of his work in those years, but at the same time he would also have had expenses. Both the former and the latter have been lost as a result of the tortious act (for a discussion of this claim, see, inter alia, Fleming, ‘The Lost Years: A Problem in the Computation and Distribution of Damages,’ supra, at p. 603; In re Joint Eastern & Southern District Asbestos Litigation [83], at p. 428).

This objection relates to the internal balance by which the compensation is assessed. This balance considers the loss and the gain resulting from the accident. Indeed, compensating the injured person in an amount that reflects his entire earnings in the ‘lost years’ means overcompensation, since it ignores the fact that in order to produce this income, the deceased would have needed to use various amounts for his subsistence. These amounts will no longer be incurred after the death, unlike, for example, in a case where the accident causes disability and not death, when the injured person must incur expenses to continue to live during the period of his disability (see R.A. Posner, Economic Analysis of Law (third edition, 1986), at p. 182). This was discussed by the Supreme Court of Canada:

‘There can be no capacity to earn without a life. The maintenance of that life requires expenditure for personal living expenses. Hence the earnings which the award represents are conditional on personal living expenses having been incurred. It follows that such expenses may appropriately be deducted from the award. Against this, it is argued that if [the plaintiff] had been born a millionaire, her personal living expenses during the “lost years” would have been met from other sources. But this does not negate the fact that in order to earn income one must live and incur the attendant expenses’ (Toneguzzo-Norvell v. Burnaby Hospital [116]).

37. We cannot, therefore, ignore the question of the living expenses. But this factor cannot affect the fundamental question of the entitlement to compensation, and its only effect is with regard to the quantum. In other words, the solution to the aforesaid difficulty lies in the realm of calculation; the court, when determining the quantum of damages, must deduct from the total income that the injured person would have accrued if he had worked in the ‘lost years’ those expenses that he would have incurred for his subsistence. This is the internal balance. It does not affect the actual entitlement to compensation but only the method of calculating it. This calculation is merely a normal consequence of our well-established rules, such as, for example, with regard to the claim of the dependants. The rule is that in calculating the loss of the dependants as a result of the death of the deceased, one must also take into account the pecuniary benefit that they received, if any, as a result of his death. This is the ‘deduction rule,’ which holds that the material benefits arising from the deceased’s death must be set off against the damage that the dependants suffered (Estate of Michal Kedar v. HaSneh Insurance Co. [25]). Albeit, this rule has been subject to criticism. This was expressed by Justice H.H. Cohn, in sarcastic terms:

‘At long last they [the mourners] have achieved a significant saving in that the deceased no longer eats breakfast, lunch or supper, nor does she any longer drink wine or spirits, tea or coffee. What is more, she no longer needs clothes or shoes, cosmetics or jewellery. These are real gains, and who knows whether in the account of the life of a well-groomed and indulgent woman these do not greatly exceed the pecuniary loss caused by her death…’ (Eliyahu Insurance Co. Ltd v. Estate of Violet Tzaig [34], at pp. 139-140).

Justice Tz. Tal, in the minority, returned in Estate of Michal Kedar v. HaSneh Insurance Co. [25] to the criticism of the deduction rule, in so far as it concerns the deduction of the compensation due to the heir of the deceased (in a claim by the estate) from the compensation payable to him as a person dependent on the deceased’s livelihood. The criticism there was directed at the deduction rule itself. In my opinion, it should have been directed against the erroneous manner in which the deduction rule was implemented, namely by exempting, in certain circumstances, the tortfeasor from his liability to pay the total damage and by limiting his liability to the ‘largest’ head of damage.

In any event, notwithstanding the feeling of discomfort arising from the calculation of the pecuniary saving arising from the death of the injured person, the deduction rule, which is founded on s. 80 of the Torts Ordinance and on the principle of returning the injured person to his original position, remains valid (see also CA 5/84 Yehezkel v. Eliyahu Insurance Co. Ltd [35]; CA 471/93 Estate of David Hyams v. Hyams [36]; CA 1503/94 Israeli Phoenix Insurance Co. Ltd v. Estate of Baruch Berman [37]). The provisions of the law that set out the limits of the deduction — such as s. 81(1) of the Ordinance, which provides that amounts that the dependants received or are entitled to receive upon the death of the deceased under an insurance contract shall not be deducted — have been interpreted narrowly on several occasions by case law (see CA 154/70 Bida v. Rubin [38]; CA 682/69 Hamudot v. Shapira [39]). It need not be said that the ‘saving’ and the ‘benefit’ discussed within the context of the deduction rule are entirely in the financial sphere, since in the emotional sphere the death of the injured person only causes his relations suffering.

Following this approach, case law has held, inter alia, that from the compensation given to the dependants we should deduct the amount of non-pecuniary compensation that they received by virtue of their being the heirs of the deceased, and that this deduction is not contrary to the provisions of s. 19(d) of the Torts Ordinance (CA 206/87 General Federation Medical Fund v. Estate of Dr Meir Edison [30]). It is from this approach also that we derive the position that the needs of the deceased — needs that were ‘saved’ when he died — should be deducted from the family funds. As Justice Barak said, within the framework of the ‘balance of profit and loss’ caused to the injured person on the death of the person who supported him: ‘We should take into account, on the one hand, the damage caused to the dependants as a result of the loss of the efforts of the mother and spouse… and on the other hand, the lack of expenses that were incurred in the past for his subsistence and needs. This lack is a saving caused to the dependants as a direct result of the death, and it should be taken into account…’ (Eliyahu Insurance Co. Ltd v. Estate of Violet Tzaig [34]). Therefore the court, when awarding the dependants compensation for the loss of support, is obliged to assess, in the first stage, the amount of income that the deceased would have set aside for the purpose of supporting those dependent on him, while taking into account, in so far as is necessary, special expenses that he would have incurred out of his income; and in the second stage, the court must calculate — by means of the parts method — the size of the deceased’s share in the family income (see Katzir, Compensation for Personal Injury, supra, at p. 782).

38. It follows that the idea whereby in calculating the loss of income after the death of the injured person one should deduct the financial saving accruing as a result of his passing away is not a new one in Israel, and it should be applied also with regard to the award of compensation for the loss of earning capacity in the ‘lost years.’ This is indeed what case law has held in the various legal systems. In England, the House of Lords held, in Pickett v. British Rail Engineering [135] that the loss of earning capacity in the ‘lost years’ is, albeit, damage that may be claimed by the living injured person, but the court must deduct from the compensation the sum that reflects the estimated expenses that the plaintiff would have incurred for his subsistence, had he lived during the ‘lost years’ (see also Harris v. Empress Motors Ltd [143]). Usually the English courts deduct 50%, unless special circumstances justifying a different calculation are proved, such as that the plaintiff could have saved a significant amount (see, for example, Phipps v. Brooks Dry Cleaning Services Ltd [144]).

Moreover, the English courts have often held that in cases where the plaintiff does not have dependants, and there is no expectation that he will have any of these — for example, because of his young age at the time of the accident — the amount of the compensation for the lost years may amount to zero. Giving compensation in such cases, so it has been said, would be too speculative (see opinions for and against this view, in Croke v. Wiseman [137]; Connolly v. Camden & Islington Area Health Authority [145]; Adsett v. West [146]; Gammell v. Wilson [147]. We will return to this issue.

39. In Ireland, too, the right of the living injured person to compensation for the ‘lost years’ has been recognized, and the court takes into account in the compensation the amount of the anticipated expenses of the injured person for his subsistence (see Doherty v. Bowaters Irish Wool Board Ltd [160]). There is similar case law in Australia (Skelton v. Collins [106]), Canada (Semenoff v. Kokan [117]; Toneguzzo-Norvell v. Burnaby Hospital [116]) and other countries.

A different note, that there is no basis for deducting from the income the amount that reflects the expenses saved in the lost years, has been heard at times in American case law (see Olivier v. Houghton County St. Ry. [94]; In re Joint Eastern & Southern District Asbestos Litigation [83], at p. 531). The reasoning behind this approach is that it is no concern of the defendant how the plaintiff uses his income. But this reasoning does not stand up to closer inspection, since the purpose of the compensation is to reflect the damage of the injured person — no more and no less — and it is clear that in the context we are discussing, the real economic damage that is caused to the injured person reflects a difference between his expected income in the ‘lost years’ and the expenses that he would need for his subsistence in those years (see Fleming, ‘The Lost Years: A Problem in the Computation and Distribution of Damages,’ supra, at p. 603).

40. In Israel, in Estate of Sharon Estate v. Gavriel [1] Justice Barak adopted the approach, which as aforesaid is accepted in most of the countries that have considered the question of the ‘lost years,’ that in assessing the damage of the plaintiff on this head, we should take into account the fact that in these years he will ‘save’ the expenses that he would have incurred had he been alive. The compensation for this head of damage should be calculated, so he proposed, as the difference between the income that he lost and the expenses that he saved. However, Justice Barak emphasized that this cannot deny the right of the injured person to the actual receipt of the compensation (Estate of Sharon Estate v. Gavriel [1], at p. 551). I too am of the opinion that, according to our accepted principles, there is no alternative to including, in the calculation of the compensation, the expenses that the injured part would have incurred had he remained alive during the ‘lost years.’ This principle leads us to the following question: what is the method that we should adopt in calculating the expenses that should be deducted for the purpose of determining the amount of compensation for the loss of earning capacity in the ‘lost years’?

Methods of calculating the expenses

Possible methods

41. In England, Canada and other countries where it is customary to award compensation for the ‘lost years,’ various methods have been adopted for the calculation of the expenses that should be deducted for the purpose of determining the amount of the compensation (see C.L. Brown, ‘Duncan v. Baddeley: Reconciling the “Lost Years” Deduction with Fatal Accident Cases,’ 35 Alberta L. Rev. 1108 (1997); Duncan (Estate of) v. Baddeley [118]; Harris v. Empress Motors Ltd [143]; C. Bruce, ‘The “Lost Years” Deduction,’ The Expert Witness Newsletter, Economica Ltd. (Spring 1997, vol. 2, no. 1)). The deduction percentage varies widely between approximately 30% or even less (see, for example, Brown v. University of Alberta Hospital [119]) and approximately 70% (see, for example, Granger v. Ottawa General Hospital [120]).

42. One method of calculation that was suggested (and rejected) in Canada is the ‘Basic Needs Approach.’ This approach is based on a criterion of basic needs, which is unconnected with the income level of the injured person. According to this approach, wherever compensation is awarded for the ‘lost years,’ an amount shall be deducted from the compensation to reflect the expenses that a person incurs for his basic needs, by taking into account details such as the question of whether he was married or not, the size of the family, etc.. This approach was criticized, inter alia, on the grounds that it does not provide a true assessment of the expenses that a particular person, with a particular level of income, would incur (see Brown, ‘Duncan v. Baddeley: Reconciling the “Lost Years” Deduction with Fatal Accident Cases,’ supra; Duncan (Estate of) v. Baddeley [118]).

43. Another approach for calculating the expenses that should be deducted in order to assess the compensation for the ‘lost years’ is the ‘Standard of Living Approach.’ This approach, apparently, is the most accepted in England and Canada. According to this approach, the potential standard of living of the injured person should be taken into account, with regard to his earning capacity. This approach was reflected in the case law of the House of Lords in Gammell v. Wilson [147]:

‘The loss to the estate is what the deceased would have been likely to have available to save, spend or distribute after meeting the cost of his living at a standard which his job and career prospects at time of death would suggest he was reasonably likely to achieve.’

Similar remarks were expressed by the Court of Appeal in England, in Harris v. Empress Motors Ltd [143], while delineating the principles underlying the Standard of Living Approach:

‘(1) The ingredients that go to make up “living expenses” are the same whether the victim be young or old, single or married, with or without dependants. (2) The sum to be deducted as living expenses is the proportion of the victim’s net earnings that he spends to maintain himself at the standard of life appropriate to his case. (3) Any sums expended to maintain or benefit others do not form part of the victim’s living expenses and are not to be deducted from the net earnings’ (at p. 228).

See also White v. London Transport Executive [148], in which the court said that:

‘In the cost of maintaining himself I include the cost of his housing, heating, food, clothing, necessary travelling and insurances and things of that kind…’ (at p. 499).

In Semenoff v. Kokan [117] the court in the Canadian province of British Columbia adopted the calculation method used in Harris v. Empress Motors Ltd [143]. So did the court of appeal in the province of Alberta, in the decisions in Duncan (Estate of) v. Baddeley [121] in 1997 and Duncan (Estate of) v. Baddeley [118] in 2000). See also the judgment of the Supreme Court of Canada in Toneguzzo-Norvell v. Burnaby Hospital [116].

44. A third possible approach to the calculation of the subsistence expenses of the injured person is the ‘Savings Approach.’ This approach assumes that the amount of income that a person has left, after he lays out the expenses needed to preserve his lifestyle, is the amount that would have been saved by him (see Brown, ‘Duncan v. Baddeley: Reconciling the “Lost Years” Deduction with Fatal Accident Cases,’ supra; Granger v. Ottawa General Hospital [120]; Marchand v. Public General Hospital of Chatham [122]; see also Australian case law in Sharman v. Evans [107] at pp. 579-583; see also Sullivan v. West Yorkshire Passenger Transport Executive [149]). This approach has received criticism, on the grounds that it is not consistent with the purpose that underlies the award of compensation for the ‘lost years,’ namely giving the plaintiff the possibility of ensuring the future of the dependants (Trindade & Cane, The Law of Torts in Australia, supra, at p. 519); it has also been claimed that this approach takes into account irrelevant factors (how the injured person would have chosen to use his money), and it does not examine the question of the deduction of expenses from the correct viewpoint — that of the injured person — but from the viewpoint of the heirs, namely what they can expect to receive in the inheritance (see Duncan (Estate of) v. Baddeley [118]).

The proposed approach

45. What is the method of calculating the expenses that should be adopted in our legal system? The Basic Needs Approach and the Savings Approach were rejected, as aforesaid, by most courts and scholars, and with good reason. These approaches suffer, as we have set out above, from significant defects. The ‘Standard of Living Approach’ is, from an objective point of view, a more suitable approach, but it too suffers from a major defect, which lies in its great vagueness. It would seem, therefore, that at least in those cases where it is possible to know or to estimate the family position of the injured person in the ‘lost years,’ we ought to adopt the method of calculation that is well established in our legal system, namely the ‘parts’ method, in the absence of particular circumstances that justify following another path. It is possible to ‘know’ when the family position of the injured person has already been established on the date of the judgment; it is possible to ‘estimate’ where it has not yet been established but can be forecast. The ‘parts’ method applies, where there is no evidence to the contrary, a working assumption — a factual presumption based on experience of life and the life style of the average family. The significance of applying this approach is that after assessing the potential income of the injured person, we should add it to the family income (‘the joint kitty’) and then, out of the total income, allocate one part as a general fixed expense of the family, and divide the remainder equally between the family members, in such a way that one part is attributed to each person. The part of the person injured by the tortious act should be deducted from his income, and thereby the amount of the compensation is reached (see Felixberg v. General Manager of the Railway [32], at p. 1638).

46. This approach has several advantages: first, it achieves the purpose of the deduction. When the parts method is used in calculating the damage of the dependants, it produces a figure for the amount that the deceased injured person would have spent on his own subsistence. This amount reflects the ‘saving’ — in material terms — that is a consequence of the death of the injured person (Eliyahu Insurance Co. Ltd v. Estate of Violet Tzaig [34]; CA 501/84 Migdal Insurance Co. Ltd v. Miron [40]). We are concerned with this amount — the amount of the material ‘saving’ arising from the death of the deceased — also when we are dealing with the issue of the ‘lost years.’ This is therefore a good reason for using the ‘parts’ method even for calculating the compensation in our case. Second, the ‘parts’ method is a convenient, effective and equal approach:

‘Certainly the “parts” method also is not exact and does not distinguish between the expenses incurred for the subsistence of the various family members that are only equal in theory; it also cannot be said that the additional “part” is equal in amount in all families and in all situations; the main advantage of the method is that it makes the method of calculation simple and leaves the court and the litigants a calculating tool that makes it easier for them to determine the pecuniary loss caused to the dependants; and this should not be considered of small importance, for a calculation by means of a formula makes the court’s work easier and helps litigants to reach a compromise in suitable cases; indeed, it was held in Felixberg v. General Manager of the Railway [32] that where there are no special circumstances in the case that require adopting a different approach, it is best for the court to adopt the “parts” method, “so that one plaintiff will not be awarded a large amount and another plaintiff a small amount, merely because of the approaches of different judges” (CA 610/75 Rotem v. Nof [41]).’

When we compare this approach, with its advantages, to others, and take into account the fact that the courts in Israel are accustomed to apply it in tort cases, its preferability to the other vague approaches that we reviewed above is clear (see also CA 1299/92 Estate of Aliza Mor v. Rom [42], at p. 702). Third, this approach takes into account both the number of persons in the family and its economic status in view of the total level of income (see Estate of Sarah Abir v. Ferber [27]; Gabbai v. Lausanne [29]; CA 541/88 Protection of Nature Society v. Estate of Ora Forman [43], at p. 142). The factors are of importance in so far as calculating the ‘saving’ resulting from the death of the injured person is concerned. Fourth, following the ‘parts’ approach also in the context of the ‘lost years’ leads to coherence and harmony in the method of calculating compensation in Israeli law, and it takes into account one of the main reasons — maybe the most important reason of all — for awarding compensation for the ‘lost years,’ namely ensuring support for the dependants. Adopting this approach brings the amount of the compensation for the ‘lost years’ closer to the amount that the dependants would have received in an independent claim for loss of support, and thus it reaches a proper result (see Waddams, The Law of Damages, supra, at § 3.920). Fifth, this approach, according to accepted case law, is not the final word, and it applies as a default method where the litigants do not show any circumstances that justify another calculation (Felixberg v. General Manager of the Railway [32], at p. 1637; Rotem v. Nof [41]; CA 204/85 State of Israel v. Mizrahi [44]; CA 587/87 Malca v. Aktin [45]). This is therefore a convenient method of calculating the compensation, and it is possible to depart from it where necessary and to use a different method of calculation that is consistent with the circumstances and the evidence presented in court.

47. Hitherto we have proposed the ‘parts’ method as a means of assessing the amount that should be deducted from the amount of compensation for the ‘lost years.’ Notwithstanding, the use of this method requires two adjustments: first, there is a difference between the award of compensation to dependants, for loss of support, and the award of compensation to a living injured person, for the ‘lost years.’ Whereas in the first case — awarding compensation to dependants — the amount that the injured person would have saved should not be included in the support compensation, since the dependants would not be benefiting from him as dependants, in the second case this amount should be part of the compensation, and there is no justification for deducting it. Indeed, when speaking of compensation for the living injured person for the ‘lost years,’ we should deduct from the amount of compensation the ‘subsistence part’ of the deceased (the amount that would have been needed for his subsistence), but we should leave as part of the compensation both the amount of the support and also the amount of the saving. Therefore, it appears that we ought to adapt the ‘parts’ method so that in the absence of circumstances indicating the contrary, a certain amount that represents the share of the injured person’s part that he would have devoted to savings should be excluded from the deduction. In other words, from the amount of the earnings we should deduct not the whole part, but only some of it, which reflects the subsistence expenses but not the savings. This division could be determined in two ways: one, dividing the injured person’s part into two, with one half reflecting the amount of savings (half as a suitable average amount) and the other, adding an additional ‘conceptual’ part to the accepted number of parts and deducting it. This second method, which increases by one part the number of parts, for the purpose of locating the ‘subsistence part’ that will be deducted from the amount of the compensation, has the advantage that, like the ‘ordinary’ parts method, it constitutes a proportional approach, based on life experience, all of which when there is no evidence to the contrary.

Second, we have already hinted above that the ‘parts’ method is appropriate mainly in those cases where it is possible to know or to estimate what the family status of the injured person would have been, had it not been for the accident, in the ‘lost years.’ This knowledge, or estimate, allows us to make the calculation according to the number of persons in the family. However, when this figure is not obtainable — for example, where it is clear that the plaintiff will not have dependants because of a very short life expectancy or a persistent comatose state — a difficulty is likely to arise in applying this method of calculation. In such a case, we can resort to several other methods: it is possible, for example, to estimate the injured person’s ‘conceptual’ family position in the ‘lost years’ on the basis of statistical figures, and to make the calculation according to the ‘parts’ method described above (see and cf. Semenoff v. Kokan [117], where the court assumed that the injured person, who was a bachelor, could have had two children). Another method is to assume that we are dealing with an injured person without dependants, and to deduct larger expenses from the compensation. In such a case, the amount that will be attributed to personal living expenses, and to savings, will be increased (see Waddams, The Law of Damages, supra, at § 3.930). We will add to this in our discussion concerning compensation for the ‘lost years’ of a child.

Compensation for the ‘lost years’ of a child

48. Although the awarding of compensation for the ‘lost years’ is designed, inter alia, to realize the social goal of protecting dependants, still there is no guarantee that the injured person will make use of the compensation money on their behalf. There is a concern that the injured person will enjoy the compensation money, in full, during the lifespan that remains, or will devote it to other purposes until there remains nothing for the dependants (this concern was regarded by the Law Commission, apparently rightly, as quite remote). Moreover, the right of the injured person to compensation is not denied where he has no dependants at all, or where his current dependants are not those persons who would have been likely to be his dependants when he passes away, had it not been for the damage that he suffered (M.A. Jones, Torts, supra, at p. 682).

A striking example of a situation of this kind can be seen in accidents where the injured person is a young child. When this is the case, the significance of one of the main reasons for awarding damages for the ‘lost years’ — namely the consideration of preventing injustice to the dependants — is reduced. Lord Denning wrote a minority opinion in a certain case that where the life expectancy of an infant is shortened as a result of an accident, awarding compensation for loss of earnings is absurd, since the compensation will go to his parents, or, if these are not alive, to another relation (Croke v. Wiseman [137]). It should be noted that, according to Lord Denning’s approach, compensation should not be awarded for loss of earnings, either in the years of life or in the ‘lost years,’ also for a child who suffers, as a result of the accident, serious brain damage (ibid.). English case law has continued to discuss, in additional cases, the great difficulty that may arise when attempting to determine the nature of the future earning potential of a child, or to estimate the amount that he would have spent on his subsistence had it not been for the accident.

49. Notwithstanding these difficulties, English case law has not denied the actual right to compensation in such cases for the head of damage of the ‘lost years.’ Even in Croke v. Wiseman [137], the majority opinion expressed reservations as to Lord Denning’s fundamental position that in so far as a small child is concerned, there is no basis for compensation for the head of damage of loss of earnings. Notwithstanding, on several occasions the courts in England have held that the amount of compensation for the loss of earnings of a child in the ‘lost years’ may be very modest, or even nil, because of the speculative nature of awarding them. In Gammell v. Wilson [147], the court held as follows:

‘In the case of a young child, the lost years of earning capacity will ordinarily be so distant that assessment is mere speculation. No estimate being possible, no award, not even a “conventional” award, should ordinarily be made.’

Notwithstanding, in Gammell v. Wilson [147], the court recognized exceptions to this rule, as for example where the career of a young television star is interrupted. In Connolly v. Camden & Islington Area Health Authority [145], it was held that the award of compensation, when dealing with a child, stands or falls by the possibility of proving it:

‘It is difficult enough in the case of a teenager or middle aged person to prove something for the lost years. It is more difficult for a child but I can envisage, with respect, far more examples than the Shirley Temple case or that of a television star. I can envisage the only son of a father who owns a prosperous business. I can envisage the son who is born to a father who is able to leave the estate to the son. I can envisage a number of situations where the court can look at something and find there are lost years to be compensated for… but what I hold and hold clearly is that Pickett and Gammell… give this little boy a head of claim for lost years, but on the material before me I am going to state… not that there is no claim but that there is a claim which I assess at nil.’

See also Adsett v. West [146]; Harris v. Empress Motors Ltd [143]. Indeed, the speculation may find expression in the question of the extent of the ‘savings’ that the child would have accumulated, as well as in the question of the identity of his dependants at the relevant times. But the speculation is a constraint that the tortious claim must address — not by means of abandoning the principle, but by an appropriate choice of the manner of applying it. Thus, for example, it is possible to suggest, in the claim of the minor, that increased expenses should be deducted from the compensation in the absence of dependants, and this method should be preferred over the more speculative assumption concerning the (future) existence and number of dependants, by deducting the part of the injured person.

50. In practice, the difficulty of assessing the damage for the loss of earnings, in the case of an injured person who is a child, is not unique to the issue of the ‘lost years.’ Many times, when a child is injured as a result of a negligent act, this can harm his future earning capacity or the possibility of finding a place in the work market. The court is required to award him compensation on the basis of assumptions and estimates, and the degree to which these are based on reality may vary from case to case. Indeed, in the case of a child, a difficulty may arise in measuring the extent of the loss of earnings, since often details are lacking with regard to the earning potential of the injured person, and the court finds itself in the dark. ‘… Determining the loss of the future earnings of a minor, who has not yet actually entered into the work market, is always a guess, which is greater the younger the minor is’ (Justice Y. Malz, in CA 311/85 Efraimov v. Gabbai [46], at p. 194). Frequently, at the time of the injury, and also at the time of the trial, the injured minor has not yet chosen his profession, has not yet begun a course of professional training, and the difficulty of estimating what the future holds for him is obvious (see the remarks of Justice T. Or in CA 634/88 Attiya v. Zaguri [47], at p. 101). Nonetheless, this difficulty cannot, as a rule, prevent the actual award of compensation for the harm to earning potential, which is an asset that belongs to its owner. ‘The special difficulty in estimating the compensation for a child at this age should not completely prevent a determination in some amount’ (CA 209/53 Weizman v. Zucker [48]; Naim v. Barda [3], at p. 786; see also Croke v. Wiseman [137]). The court is not intimidated from attempting to determine amounts that will reflect, to some degree or other, the damage caused to the injured person, and this has on several occasions been done by determining a global amount (CA 685/79 Atrash v. Maalof [49], at p. 630; CA 335/59 Reichani v. Tzidki [50]; CA 326/88 Zimmerman v. Gavrielov [51], at p. 360) or by relying on the amount of the average salary in the economy (CA 142/89 Gamliel v. Oshiot Insurance Co. Ltd [52]).

It would appear that similar considerations should also guide the award of compensation in cases where we are concerned with the loss of earnings in the ‘lost years’ of a child. In Estate of Sharon Gavriel v. Gavriel [1], at pp. 557-558, Justice Barak expressed the opinion that:

‘We should not establish a legal principle to the effect that the compensation to which a young child is entitled is always minimal or even nothing. No hard and fast rules should be determined in this respect. Everything depends upon the circumstances of each individual case, i.e., on the factual basis that is presented before the court considering the matter, and they may be cases in which the compensation will be significant (see: Rose v. Motor Vehicle Insurance Trust [108]) (Estate of Sharon Gavriel v. Gavriel [1], at pp. 557-558).

Thus, the mere fact that the injured person is a minor should not, in principle, affect the question of the entitlement to compensation, even though it is possible that it will have significance in determining the amount of the compensation. The plaintiff who is a minor will be entitled to claim compensation and this right remains unassailable even where the assessment of the compensation is very modest.

Interim summary: the claim of the living injured person

51. The various legal systems have directed their attention to the issue of the ‘lost years.’ Different approaches have adopted by the different systems, but it can certainly be said that in many countries — some of which have common principles with the Israeli legal system in this context — the head of damage of the ‘lost years’ is recognized as damage for which the living injured person can sue. This is the case in England, Canada, Australia, Ireland, Scotland, New Zealand and the United States. A similar approach should also be adopted by us, in so far as the claim of the living injured person is concerned. Thereby we will be giving expression to the basic principles of the law of compensation, both for the goals that the law of torts seeks to realize, and also for the social purpose that involves ensuring the status of the dependants.

Should the law also be applied in this way with regard to a claim of the estate?

Compensation for the ‘lost years:’ claim of the estate

52. We have hitherto examined the entitlement of the living injured person, whose life expectancy has been reduced, to compensation for the loss of his earning capacity in the ‘lost years.’ Let us now consider the other question, which concerns the right of the estate to claim this head of damage, where the life expectancy of the injured person was shortened to such a degree that he did not manage to claim his damage. We have discussed how the rights of action of the deceased injured person against the tortfeasor — both for pecuniary loss and for non-pecuniary loss — ‘survive’ his death and pass to his estate. Prima facie, no question arises therefore with regard to the existence of a right of action of the estate for the damage of the loss of earning capacity in the ‘lost years.’ Notwithstanding, some of the countries that have recognized the entitlement of the living injured person to compensation for this head of damage, have not recognized a similar right of the estate.

53. In England, the court originally held that the provisions of the law did not allow a distinction between the claim of the living injured person and the claim of the estate. Consequently, once it had been established in Pickett v. British Rail Engineering Ltd [135] that the living injured person, whose life expectancy has been shortened by a tortious act, had a right to compensation for the loss of earning capacity in the ‘lost years,’ the courts applied the rule also with regard to claims of an estate (see Gammell v. Wilson [147]; Kandalla v. British European Airways Corp. [150]). The courts in England were not always comfortable with this result, and they emphasized that the difficulty that was created as a result of the ruling in Oliver v. Ashman [134], and which was overturned in Pickett v. British Rail Engineering Ltd [135], does not exist when the injured person himself did not file a claim in his lifetime. This is the case because in such a case the estate’s claim and the dependants’ claim do not exclude one another; in other words, the dependants have an independent claim for loss of support. As Justice Griffiths said in Kandalla v. British European Airways Corp. [150]:

‘The same dilemma does not arise in a case such as the present where the wage earner has been killed in the accident and claims are brought both under the Law Reform Act for damages on behalf of the estate and under the Fatal Accidents Acts, for both actions can run concurrently. Justice can be done to the parents by an award under the Fatal Accidents Acts and any sums for the “lost years” awarded under the Law Reform Act which exceed the value of the Fatal Accidents Act damages will be a pure windfall for the parents’ (at pp. 168-169).

A change of legislation in England put an end to the possibility of the estates of deceased injured persons making a claim for the ‘lost years’ (see the Administration of Justice Act 1982, s. 4, following the recommendations of the Law Commission and the Pearson Royal Commission). The main reason for this legislative change was the desire to prevent a situation of a windfall for the dependants, as occurred, allegedly, in Gammell v. Wilson [147].

54. This approach of the English legislature has not escaped criticism, which has been expressed, inter alia, on the grounds that this is not the only case in which the relatives of the injured person enjoy a ‘windfall’ of this kind, and denying compensation for this reason, only for the head of damage of the ‘lost years,’ is somewhat arbitrary. Consider, for example, the compensation awarded to the estate for the pain and suffering of the deceased before he died, or the pecuniary benefit of the relatives of the injured person who is in a permanent vegetative state and who is entitled in his lifetime to compensation for the loss of earning capacity.

Another criticism that has been made in England with regard to the provisions of s. 4 of the Administration of Justice Act 1982 is that the right of claim of the estate for the ‘lost years’ has been denied, in accordance with this provision, also in cases where the dependants do not have a right of claim for loss of support. This, for example, is the case where the earning capacity of the injured person is reduced by a tortious act, but the injured person died before trial for a reason unconnected with the tort. The dependants remain, in this situation, without support and without compensation (see Cane & Harris, ‘Legislation,’ supra).

A similar process to the one that took place in England can also be seen in Australia. At first the court there held that in the absence of legislation providing otherwise, the right of the injured person to sue for the loss of earning capacity in the ‘lost years’ passes to the estate (see Fitch v. Hyde-Cates [109]). However, this ruling was overturned by the legislature in most states and territories (see Fleming, The Law of Torts (seventh edition, 1987) at p. 640, and also Trindade & Cane, The Law of Torts in Australia, supra, at pp. 548-549). In Scotland also the legislator has denied the right of claim by the estate for the loss of the deceased’s earnings after his death (see Damages (Scotland) Act 1976, s. 2).

55. In Canada, there is no uniform response to the question of the ‘survivability’ of a claim for the loss of earnings. As a rule, when the death of a person is caused by a tort, the estate has a claim for the loss of earnings in the period that preceded the death. However, this is not necessarily the case with regard to the loss of earning capacity in the ‘lost years.’ In the province of Saskatchewan the legislature provided, expressly, that the damage of loss of income after the death of the injured person is not claimable under the Survival of Actions Act (see s. 6(2)(b) of the Act). This was also provided by the legislature of the province of British Columbia (see the Estate Administration Act [RSBC 1996], s. 59(3)(c)). The reason underlying these provisions of statute is the desire to prevent compensation on two parallel tracks — the claim of the estate and the claim of dependants, which would mean a windfall for the estate (Cassels, Remedies: The Law of Damages, supra, at p. 192).

A similar approach has been adopted by case law in other provinces, such as New Brunswick (see Saint John Regional Hospital v. Comeau [123]), the province of Ontario (see Balkos v. Cook [261)) and the province of Prince Edward Island (see Rayner v. Knickle [125]). However, in the province of Manitoba, the court recognized in one case a claim of an estate for the loss of earning capacity in the ‘lost years’ (see Woollard v. Coles [126]).

56. An interesting development on this issue occurred in the province of Alberta in Canada, where case law recognized the claim of an estate for compensation for the lost years of earnings. Duncan (Estate of) v. Baddeley [121], which led to much discussion, considered the claim of the estate of a sixteen year old boy who was killed in a road accident, without leaving any dependants. The court held that:

‘… in Alberta a claim for loss of future earnings does survive the death of the victim. And, with two important qualifications, that claim should be assessed as would any claim for loss of future earnings.’

The court in Alberta held, therefore, that the claim for compensation for the loss of earning capacity ‘survives’ the death of the injured person. In giving its reasons for this conclusion, the court said, inter alia, that just as the estate is entitled to compensation for an asset that was destroyed in the accident in which the deceased lost his life (for example, a watch that the deceased wore on his wrist), so should compensation be awarded to the estate for the asset included in the loss of earning capacity. The court also was of the opinion that there is no justification for distinguishing between an injured person who has ‘succeeded’ in remaining alive until the date when the judgment is given, and an injured part who died a day before judgment was given, where in the first case the entitlement to compensation for the ‘lost years’ has been established, and the relatives are entitled to inherit the compensation money after the death of the injured person, while in the second case, the tortfeasor who has made death imminent or who has been able to delay the proceedings is not required to pay compensation. The two qualifications to which the court alludes in the aforesaid citation concern the deduction of the living expenses and income tax — during the reduction of the life expectancy — from the amount of the compensation (for further discussion of the judgment, see, for example, C.L. Brown, ‘Duncan v. Baddeley: Reconciling the “Lost Years” Deduction with Fatal Accident Cases,’ supra; for similar case law, also in the province of Alberta, see Galand Estate v. Stewart [127]; Brooks (Estate of) v. Stefura [128].

57. But in Alberta too the law in this respect was changed, when in the year 2000 the legislature accepted the recommendations of the Alberta Law Reform Institute, which were published in 1998 (Report no. 76), and amended the Survival of Actions Act in such a way that the estate cannot recover for:

‘damages in relation to future earnings, including damages for loss of earning capacity, ability to earn or chance of future earnings’ (s. 5(2)(c))

It should be noted that the Alberta Law Reform Institute reached its conclusion on the basis of a process of thought involving six stages: first, the basis for the payment of compensation for the loss of a chance of future earnings is compensation for the injured person; second, payment of money cannot compensate someone who has died, and loss of the deceased’s chance of future earnings does not cause the estate any loss. Therefore, payment of compensation for loss of a chance of future earnings does not compensation anyone; third, justice does not require a payment of money for loss of a chance of future earnings for any purpose other than compensation; fourth, doing justice to the family members, whom the deceased left behind, is done most directly and effectively by means of an action of the dependants, and justice does not require this by way of an action of an estate for loss of a chance of future earnings; fifth, the chance of future earnings is not an asset that can be bequeathed; sixth, the valuation for a loss of a chance of future earnings is difficult and requires ‘gazing into a crystal ball.’

58. The path delineated by the Alberta Law Reform Institute is not without difficulties. We will not elaborate on this, but at the same time we will not remain silent on this issue, especially in view of the fact that the Institute’s arguments reflect the position of those who deny the compensation, and we should point to several counterarguments that challenge this position. The compensation for the loss of earning capacity is, indeed, compensation for damage that is caused, in the nature of things, to the injured person. We have already discussed how the earning potential is an ‘asset’ that belongs to a person, whose financial value is estimated according to the ‘value of the output that he is likely to produce while he is alive, i.e., according to the value of the earnings receivable from making use of the skill’ (Barak, ‘Assessing compensation in personal injury: the law of torts as it is and as it should be,’ supra, at p. 257). The harm to this potential gives rise to an entitlement to compensation, and as stated the fact that the injured person will not be alive in the ‘lost years’ does not negate this entitlement. With regard to the estate, it should be remembered that had the injured person realized his earning potential, it is certainly possible that his estate would have been larger. In this sense, it can be said that the death of the injured person caused a loss to the estate (see In re Joint Eastern & Southern District Asbestos Litigation [83], at p. 428).

The following can also be said: most of the arguments of the Alberta Law Reform Institute are not inconsistent, in my opinion, with the recognition, which has been widespread in Canada for many years, of the right of the living injured person to compensation for the ‘lost years.’ Thus, for example, the Institute thought that there was no basis for awarding compensation when the injured person himself is not able to enjoy it. But we have seen that even with regard to the living injured person the assumption is that he will not be alive in those years, and in any event he too will not be able to enjoy the compensation attributed to the lost period. Admittedly, from a practical viewpoint the living injured person can make use of all the amount of the compensation during the years of life that he has left, since in general (although not always) the compensation is awarded by means of a capitalized lump sum payment. But this cannot affect the nature of the compensation, which is compensation that is given for the lost years of life, and therefore from a theoretical point of view, the aforesaid argument concerning the inability of the injured person to enjoy the compensation for the ‘lost years’ is valid to a large extent also with regard to the living injured person. As has been explained above, this argument cannot withhold the compensation from the living injured person — this has also been held in Canada — and the report of the Institute contains no convincing reason why it should result in denying the compensation to the estate. And if we are making a comparison with the case of the living injured person, it is fitting to cite the remarks of the Albertan court in Duncan (Estate of) v. Baddeley [121]:

‘When the injured person survives until judgment, he is given substantial damages. The fact that he dies the day after judgment does not reduce the damages, nor remove his beneficiaries’ right to inherit them. Indeed the very reason for the damages is the accurate foresight that he would die young…

Why should the tortfeasor escape scot-free if the plaintiff dies the day before judgment is pronounced? Worse still, why should the tortfeasor who has made death imminent escape scot-free if he manages to drag out the litigation long enough that he produces the very death in question, before judgment?

In my view, the issues here transcend questions of social utility or inheritance. They involve justice.’

With regard to the dependants, albeit where we are speaking of a claim by an estate, and the injured person himself did not file a claim when he was alive, the dependants have an independent claim for loss of support, so that awarding compensation for the ‘lost years’ does not serve the purpose of protecting their interest. However, it should be remembered that the estate stands in the stead of the injured person himself, and its right derives from the right of the injured person; therefore, recognition of the right of the living injured person to compensation for the ‘lost years’ necessitates, in the absence of a statutory provision to the contrary, a recognition of this right in the claim of the estate. Moreover, as aforesaid, it is difficult to find a material difference — in so far as the estate receiving a ‘windfall’ is concerned — between a right of claim for loss of earning capacity in the ‘lost years’ and a right of claim for other damage caused to the injured person, such as the non-pecuniary damage of pain and suffering and loss of life expectancy, with regard to which it is accepted in our legal system that the estate has a right of claim (see Estate of David Azoulay v. Vulcan Casting Enterprises Ltd [24], at p. 560). The ‘survivability’ of both one and the other is not intended to compensate the dependants — for this purpose they have a separate right of claim — but to have the estate include the wealth reflected in the deceased rights of claim, as s. 19 of the Ordinance directs. It appears that it is in fact the compensation for loss of earning capacity — which as aforesaid is an asset that belongs to its owner — that is more suitable for being bequeathed than the compensation for pain and suffering, which is of a special ‘personal’ character. In any event, it is clear that had the injured person been alive, filed a claim and obtained a judgment in his favour, and then died as a result of an external factor, whether tortious or not, the compensation that he would have been awarded would constitute a part of his estate, and no-one would regard this as a ‘windfall’ more than any other asset of the deceased that passes to his heirs. The enrichment of the heirs is a result of two things: first, the legal rule that provides that a claim of the injured person survives after his death, if he has not exhausted it; and second, the concept of the inheritance of wealth, which has been accepted since time immemorial in human society. The head of damage concerning the loss of earning capacity is, from this viewpoint, not at all unique. And as for the claim that the difficulty is double compensation, below it will be explained that the amount to which the dependants are entitled in their independent claim should be set off against the amount that is receivable by the estate.

Finally, even the argument raised by the Alberta Law Reform Institute with regard to the difficulty in estimating the damage does not necessarily lead to the conclusion that one should deny, absolutely and in every case, the right of the estate to compensation. This argument is correct in many cases where compensation is awarded for future damage — ‘the doctrine of compensation is a doctrine of uncertainty’ (CA 237/80 Barsheshet v. Hashash [22]). This is especially correct when we are dealing with a loss of future earning capacity. ‘The courts have pointed out many times the difficulty in determining and calculating the loss of the injured person’s future earning capacity. This is an attempt to estimate and determine facts where there is no certainty, and facts, guesses and estimates combine together. The main thing is that anything that today is considered expected may turn out, when times and circumstances change, as a totally unreliable way of estimating loss of earning capacity’ (per Justice T. Or in Youness v. Israel Car Insurance Pool [19]). Indeed, whether we are dealing with the loss of earning capacity in general or the loss of earning capacity in the ‘lost years’ — the art of calculating the compensation is a difficult one, and can be compared to gazing into a crystal ball. But this is not sufficient to deny the actual right to the compensation, even though, as we have already seen, in English law, in some cases where the compensation is too speculative it has been held that the amount of compensation is low or even nothing. So we see that the right to compensation is one thing, and the assessment of the compensation quite another.

59. This is the situation in Canada. In Ireland, the rights of claim of the deceased pass to the estate, subject to several exceptions. The exceptions to the passing of the right do not include a right of claim for loss of earning capacity in the ‘lost years’ (see Civil Liability Act 1961, s. 7; The Law Reform Commission, Report on Personal Injuries: Periodic Payments and Structured Settlements (1996)). In South Africa, on the other hand, the possibility of the estate filing a claim for loss of earning capacity in the ‘lost years’ was denied in Lockhat's Estate v. North British and Mercantile Insurance Co. Ltd [165].

60. In the United States, the legal position on this issue is complex, and is deeply rooted in the legal system there. There are States that recognize both an independent claim of certain family members for the damage that they suffered as a result of the deceased’s death (a wrongful death action), and also a claim of the estate (or of another lawful representative) for the deceased’s causes of action that ‘survived’ his death (survival statute). Among those States, some recognize the possibility of including in the surviving claim the head of damage of loss of the deceased’s future income. The meaning of this recognition is what leads to a fear of double compensation: both compensation of the family members in a wrongful death action for that part of the deceased’s future income that would have been devoted to their support, and also compensation for loss of future income of the deceased within the framework of the survival action (see Hindmarsh v. Sulpho Saline Bath Co. [95], at p. 808). But at the same time, this recognition, according to those States, is capable of preventing a tortfeasor who by his act brought about the death of the injured person from having to pay out a windfall (see James O. Pearson Jr., ‘Recovery, In Action for Benefit of Decedent's Estate in Jurisdiction Which Has Both Wrongful Death and Survival Statutes, of Value of Earnings Decedent Would Have Made After Death’ 76 A.L.R. 3d 125 (1977)). Since the living injured person is entitled to claim compensation for the loss of his income during his normal (unreduced) life expectancy, and since the survival laws are intended to preserve the cause of actions of the deceased injured person, it follows that, according to the case law of some courts in the United States, the survival claim for loss of income that the deceased would have had if he had lived a normal life expectancy should be recognized (see Balmer v. Dilley [96] at p. 458).

Thus, for example, in the District of Columbia, the case was considered where a man died by drowning, when his car fell from a bridge as a result of a road accident. The court held, in that case, that there was nothing to prevent recovering under both laws, since:

‘loss to the estate is represented by that part of the deceased’s net probable future earnings that probably would have been utilized by the deceased to enlarge his estate, whereas loss to the spouse and next of kin is represented by the loss of a source of maintenance for such things as food, clothing, shelter, educational expenses, and the like’ (Runyon v. District of Columbia [97] at p. 1323).

In the State of Pennsylvania it was held, in the case of a five year old girl who was killed in a road accident, that her estate:

‘… is entitled to the present value of the decedent’s prospective earnings for the period of her work-life expectancy after reaching the age of twenty-one, less her anticipated maintenance expenses, plus recovery for her pain and suffering’ (Weaver v. Ford Motor Co. [98], at p. 1077).

This is also the law in the State of Texas (Hope v. Seahorse, Inc. [99], at p. 990) and in the State of Washington (Balmer v. Dilley [96], at pp. 458-459); for a review and additional references, see Pearson’s article, supra.

The courts that awarded damages to the estate for loss of earnings in the ‘lost years’ were of the opinion, in general, that the living expenses that the injured person would have needed if he had lived, as well as the expenses that he would have incurred for the support of others, should be deducted from the amount of the income that would have accrued to the injured person in those years. The purpose of this, so it was held, was to prevent a windfall to the estate of the payment of double compensation to the dependants (see Pearson’s article, supra, and also Murray v. Philadelphia Transp. Co. [100], at p. 325; Ferne v. Chadderton [101], at pp. 107-108).

61. By contrast, there are States in the United States in which the two claim tracks do admittedly exist, but in a claim under the survival statute it is not possible to claim compensation for the loss of the deceased’s future income. This is the case, for example, in the States of Hawaii, Kansas, Massachusetts, Missouri, Maryland, Wisconsin and other States (see, inter alia, Greene v. Texeira [102], at pp. 1172-1173; Prunty v. Schwantes, 162 N. W. 2d 34, 37-38 (1968); Eric W. Gunderson, ‘Personal Injury Damages Under the Maryland Survival Statute: Advocating Damage Recovery for a Decedent’s Future Lost Earning,’ 29 U. Balt. L. Rev. 97 (1999)).

There are also States in the United States where there only exist statutes of a nature of a survival statute. This is the case, for example, in Connecticut, Georgia, Florida, Mississippi and Tennessee. In these States also it has on several occasions been held that the head of damage of the loss of income capacity may be included in the claim (see, for example, Sanderson v. Steve Snyder Enterprises, Inc. [104], at p. 397).

62. Returning to Israel, s. 19(a) of the Torts Ordinance provides, as we have already seen, that causes of action in torts that a person who died could have brought or could have had brought against him continue to remain valid for or against the estate of that person. It seems, therefore, that in Israeli law the existing law is clear; it is that no distinction should be made between the personal claim of the living injured person and the claim of the estate of the deceased injured person. Therefore, once we have determined that we should recognize a right of the living injured person to a claim for the loss of earning capacity in the ‘lost years,’ we must automatically, in the absence of a statutory provision to the contrary, recognize also the right of the estate to the same cause of action. Indeed, ‘if we recognize the right of the living injured person, whose life expectancy has been reduced, to receive compensation in his lifetime for the ‘lost years,’ it is very difficult, on a “technical” level, not to recognize the right of the estate’ (Estate of Sharon Gavriel v. Gavriel [1], at p. 560). This is the case with regard to the non-pecuniary loss involved in the loss of years of life (within the framework of the head of damage of loss of life expectancy), and it should also be the case with regard to the pecuniary loss involved in the same damage. ‘In both cases, we are concerned with compensation for the years of “non-life;” in both cases we are concerned with compensation for loss, which will occur after the death of the injured person, and in both cases we are concerned with objective loss and not with compensation for the subjective feeling of the injured person in his lifetime about his death’ (ibid.). This approach, according to which the same law applies to the estate as to the living injured person, is accepted, in practice, by everyone, and in England it led, as aforesaid, to the recognition, in case law, of compensation for the ‘lost years’ also in the claim of the estate (until the law was changed in this regard; see mainly Gammell v. Wilson [147]).

63. Our conclusion is, therefore, that once we have determined that we should recognize the right of the living injured person to compensation for loss of his earning capacity in the ‘lost years,’ we also should recognize a similar right of his estate. This is the ‘Gordian knot’ that ties the law applying to the estate to the law applying to the living injured person, which Justice Barak also discussed in Estate of Sharon Gavriel v. Gavriel [1], and this knot — whether it is desirable law or not — cannot be untied without a change in legislation.

We shall now seek to address two additional matters, which are connected with the question of the entitlement of the estate to compensation for the loss of the deceased’s earnings in the ‘lost years.’ The first concerns the ruling in Estate of Lily Hananshwili v. Rotem Insurance Co. Ltd [7], and the second concerns the question of the fear that the tortfeasor will be found liable for double compensation.

The Hananshwili ruling

64. In Estate of Lily Hananshwili v. Rotem Insurance Co. Ltd [7], a person was injured in a road accident. As a result of the accident, he suffered a 28% permanent disability, and his earning capacity was reduced. Before he filed a claim for his damage, he had the misfortune to be injured in another road accident, in which he lost his life. His widow and children filed a claim, as heirs and as dependants, against the insurance companies liable for the damage in the accidents, and the question arose as to who was liable for the loss of the 28% of the injured person’s earning capacity during the period from the date of the second accident until the end of the injured person’s life expectancy. The Supreme Court held that the second accident denied the injured person the possibility of suing the first tortfeasor for compensation, for the loss of the earning capacity in the aforesaid period. Therefore, it was held that the second tortfeasor was liable to compensate the estate for this damage. In the words of Justice Netanyahu:

‘The second tortfeasor takes the injured person as he is, for better or for worse. He found the injured person who had been injured in the first accident and his work capacity was reduced (in our case by 28%). He brought the injured person to a situation where he had a 100% loss of work capacity. He is not liable to compensate the dependants for loss of support to the extent that it was caused by the first accident. Therefore his liability will not be in an amount of 100% but in an amount of 72%. But he also found an injured person with a right of claim against the first tortfeasor for a loss of future earnings in an amount of 28%, which occurred and accumulated also in the interim period. This right of claim was lost to the estate as a result of the deceased’s death. He must compensate the estate for this loss’ (ibid., at p. 551).

We have already pointed to the ‘footprints’ of compensation awards for the ‘lost years’ in out legal system. Here you have additional footprints. Admittedly, the court pointed out that in view of the rule in Estate of Sharon Gavriel v. Gavriel [1] the first tortfeasor was not liable to compensate the estate for the loss of the injured person’s earning capacity after his death (ibid.). However, the court saw fit to find the second tortfeasor, who caused the injured person’s death, liable for compensation for loss of work capacity, notwithstanding the regrettable fact that the injured person would not be alive in that period of lost earnings. The court did this on the basis of the ‘claimable damage’ inherent in the loss of the possibility of filing a claim against the first tortfeasor, but this cannot change the fact that in practice compensation was awarded here for the loss of earning capacity in the years of non-life (in an amount of 28% of the expected income of the deceased in those years; this amount was added to the compensation that was awarded to the dependents for loss of support). The connection — and the possible conflict — between the judgment in Estate of Sharon Gavriel v. Gavriel [1] and the judgment in Estate of Lily Hananshwili v. Rotem Insurance Co. Ltd [7] was discussed by Prof. A. Porat in the following terms:

‘The inability of a person to claim compensation for the “lost years,” either from the first tortfeasor or from the second tortfeasor, derives from the ruling of the Supreme Court [in Estate of Sharon Gavriel v. Gavriel] which is based on the approach that in the “lost years” the injured person did not suffer any damage of a reduction in his earning capacity! In the absence of damage, there is no compensation. In Hananshwili the Supreme Court resorted to this very approach, in order to explain the unambiguous inability of the estate to claim any compensation from the first tortfeasor, for harm to the earning capacity relating to the interim period, which is none other than the “lost years.”

If this is the case, then the injured person in Hananshwili lost his cause of action against the first tortfeasor primarily for the reason that after the death there is no longer any damage as a result of a reduction in the earning capacity. Granting any compensation to the injured person for loss of earning capacity relating to the “lost years” will give him overcompensation in excess of his damage…

[The Hananshwili ruling] may, possibly, raise an additional question mark to the ones already raised as to the correctness of the “lost years” rule’ (A. Porat, ‘Law of Torts,’ Israel Law Annual 222 (1991), at pp. 255-256.

Note that in Estate of Lily Hananshwili v. Rotem Insurance Co. Ltd [7] the Supreme Court awarded the estate compensation as aforesaid, even though it was incapable of benefiting the injured person — who was no longer alive — but only his dependants and heirs.

The fear of double payment

65. One of the main arguments raised against awarding compensation to the estate for the ‘lost years’ is that doing so will cause injustice to the defendant, who will be required to pay twice — once in the dependants’ claim for the damage of loss of support and a second time in the claim of the estate for loss of earnings in the ‘lost years.’ Such a danger does not exist in the claim of the living injured person, since in this case there is no claim of the dependants. However, where the deceased has not exhausted his claim in his lifetime, the defendants’ claim is not barred, and it may stand alongside the claim of the estate. This is what leads to the fear that the tortfeasor may be found liable to make a double payment.

In practice, there are several different scenarios of the relationship between the dependants’ claim and the estate’s claim, and consequently of the way in which the amount of compensation payable to the estate for the ‘lost years’ should be calculated. We will seek to show that in all these scenarios, there is no real danger of imposing a liability for overcompensation on the tortfeasor.

66. The first scenario, which is the most common, is the one where the heirs are also the persons who were dependent on the deceased for their livelihood. In such a case, which as aforesaid is the usual one, there is no fear of double compensation. This is because of the deduction rule, which directs us to deduct from the claim of the dependents the benefit that they received from the estate, including the compensation for the ‘lost years.’

Notwithstanding, it should be noted that occasionally, where the heirs are also the dependants, the fear of double compensation is solved in another way, namely not by means of the deduction rule. This group of scenarios includes several possibilities: first, it is possible that the dependants-heirs do not have any dependants’ claim. This will be the case where the deceased died as a result of another tortfeasor and also where he died not as a result of a tortious act. In these two cases, the death was not caused by the tort that was done by the tortfeasor who harmed the deceased’s earning capacity, i.e., the source of the dependants’ livelihood; in any event the claim of dependants does not arise and in any event there is no fear of double compensation. In the absence of a dependants’ claim there is no basis for reducing the value of the estate’s claim, not even conceptually. Another scenario that belongs to this groups of cases is where there is a dependants’ claim, and the dependants are the heirs, but they are not able to recover from the estate, because it is not solvent. In such a case, there is no practical application of the deduction rule, since in practice the dependants have not received, in their capacity as heirs, any benefit from the death of the deceased. Prima facie, this is the situation where the fear of double payment arises from the tortfeasor’s point of view. In practice, this fear will be realized rarely, since an estate that is bankrupt is, usually, the estate of someone who in his lifetime was unable to support the dependants with his own efforts, and this will naturally be taken into account in their claim.

67. Another scenario that requires consideration is the case where the heirs are not the people who were dependent on the deceased for their livelihood. This scenario, as aforesaid, is not the usual one, but here too we can solve the problem of the double compensation. It appears that the proper way of doing this, within the framework of the existing system, is to deduct from the estate’s claim the amount that the injured person would have spent on his dependants. The logic for this lies in the assumption that the injured person would have devoted this amount to the support of his dependants, whereas his heirs are no longer required to do this, since the dependants’ claim will be directed against the tortfeasor. This was well described by Justice Barak in Estate of Sharon Gavriel v. Gavriel [1]:

‘This solution is based on the distinction… between the right to compensation and the assessment of the compensation. According to this approach, the right of the estate to compensation is like the right of the living injured person to compensation, since “the estate is compared to a polished mirror,” which reflects the right of the injured person itself, but just because the actual right is identical does not mean that the amount of the compensation is identical. Just as when assessing the damage to the living injured person we must take into account the expenses that the living injured person spent on himself, and that were saved in the years of “non-life”… so too in assessing the damage to the estate we should take these expenses into account, as well as expenses that the injured person would have spent on his dependants and which he will no longer be required to pay, since the liability to compensate for them has been imposed on the tortfeasor… according to this approach, the tortfeasor will no longer pay double compensation, since the amount of the compensation that will be awarded to the estate will not include the amount that will be awarded to the dependants (ibid., at p. 564, and see the references cited there, at pp. 565-568).

A similar solution was adopted in several Australian judgments. This, for example, was held by Justice Taylor in the leading judgment in Skelton v. Collins (1966) 115 C.L.R. 94:

‘As to the possibility of the duplication of damages I observe that if an injured person has, himself, recovered damages no further action will lie for the benefit of his dependants in the event of his subsequent death whilst in the case where an action is brought, not by the injured person himself but, upon his death, by his legal personal representative for the benefit of his estate, the damages would be assessed having regard to the gain, if any, which would have accrued to the deceased from his future probable earnings after taking into account the expenditure which he would have incurred, if he had survived, in maintaining himself and his dependants, if any’ (at p. 114).

This solution to the problem of double payment is not in conflict with the provisions of statute. As Justice Barak held, in Estate of Sharon Gavriel v. Gavriel [1], the approach whereby the amounts of support devoted to the dependants are deducted from the estate’s claim can also be resolved with the rather vague provision of s. 19(b) of the Torts Ordinance, which states that ‘if a cause of action continues to exist as aforesaid in favour of the estate of the deceased, and the act or the omission that created the cause of action led to his death, the compensation that can be recovered by the estate shall be calculated without taking into account the loss or profit caused to the estate as a result of the death…’. This provision, so Justice Barak elucidated, concerns the loss or profit of the estate, whereas we are dealing with the loss or profit of the injured person before his death. When the dependants have an independent cause of action against the tortfeasor, for loss of support, the deceased is no longer required, prior to his death, to pay this expense (ibid., at p. 566).

Moreover, s. 19(d) of the Ordinance, which provides that ‘the rights given under this Ordinance to the estate of the deceased are intended to add to the rights given to the dependants of the deceased under this Ordinance or any other legislation and not to detract from them,’ concerns, according to well-established case law, the actual right to compensation, and not the amount of the compensation (ibid., see also General Federation Medical Fund v. Estate of Dr Meir Edison [30], at p. 80; Estate of Michal Kedar v. HaSneh Insurance Co. [25], at pp. 606-607). Therefore, even the provisions of this section do not preclude the possibility of adopting the solution set out above in our legal system.

68. It should be noted that the approach that the problem of double compensation should be solved by means of deducting the claim of the dependants from the claim of the estate has received criticism. The main criticism arises from the fact that in the claim of the living injured person the claim of the dependants is not deducted — we should remember that one of the main reasons underlying the awarding of compensation for the ‘lost years’ is to ensure the dependants’ interests — and there is no reason, so the criticism goes, to have different compensation principles for the claim of the estate (see Waddams, The Law of Damages, at § 12.220). The response to this claim is that the compensation principles are indeed different. The calculation of the damage arising from the lost years of earnings is made in the same way — both for the claim of the living injured person and for the claim of the estate. However, when awarding the compensation, the court should — here as in other cases — take into account the question of the double compensation and the savings accruing to the estate from the very existence of the dependants’ claim that is directed at the tortfeasor. The significance is that where compensation has already been given for the same damage, the court will not award additional compensation. This is only done in order to realize the rule of returning the injured person to his original position.

From all of the above it transpires that even the argument about the fear of double payment by the tortfeasor cannot change the conclusion that we have reached, whereby according to the existing law a right of claim by the estate for loss of earning capacity of the deceased in the ‘lost years’ should be recognized.

In calculating the compensation for the estate, an amount reflecting the expenses that the deceased would have incurred for his livelihood ‘in the lost years’ should be deducted (see also, in this regard, what we said above in respect of the compensation for the living injured person), as well as — in appropriate cases — an amount reflecting the expenses that he would have incurred for his dependants. An additional outcome of this compensation system is that, in the final analysis, the additional amount that the tortfeasor is required to pay — over and beyond what he would have been liable to pay in any case if the head of the ‘lost years’ had not been recognized — is quite modest. We are speaking of an amount that reflects the savings that the injured person would have accumulated in the ‘lost years.’

69. It should be emphasized that the solution proposed for our legal system to the difficulty inherent in the double compensation is not the only possible solution. As we have said, this difficulty has constituted a main stumbling block for making the tortfeasor liable, in a claim of the estate, to pay compensation for the lost years of earnings. Various countries have indeed denied the estate the possibility of claiming this head of damage. Thus, in those countries, the fear of double payment was averted. We discussed above the theoretical and practical difficulties inherent in that solution. In any event, it cannot be implemented in Israel without a change of legislation. But in my opinion, if the legislature is called upon to make a major change in the compensation system, this is not the change that I think it ought to choose. It appears that there would be an advantage to a change in exactly the opposite direction, namely the cancellation of the claim of the dependants and enriching the claim of the estate. This solution was proposed by Professor Waddams. In his opinion, the independent claim of the dependants that derives from the loss of the deceased’s earning capacity should be cancelled, and only one claim should be allowed — the claim of the estate — for these losses also. According to this approach, the compensation that will be paid for loss of earning capacity will be identical, whether the injured person remains disabled or whether he is killed in the tortious act, and whether he has dependants or not. As Professor Waddams explains, the solution is not new, and it was already suggested in England in the nineteenth century. This solution is attractive, inter alia because it removes the stain associated with the outcome that the law of torts is more lenient to the tortfeasor who kills that to the tortfeasor who wounds, and because it negates the fear of double compensation arising from double claims (see Waddams, The Law of Damages, at § 6.760). Notwithstanding, this solution also has a difficulty, and in any event it cannot be implemented in the legal system practised in Israel. The difficulty lies mainly in the need to refer the claim of the dependants for their damage to the estate, and the need to ensure that they will recover from the estate, even if it is insolvent and if the deceased disinherited them in his will. It follows that adopting this arrangement in full requires legislation. We therefore return to the compensation arrangement that has been delineated above, which brings the claim of the estate, within the limits of the existing system, to optimal results.

The lost years: summary

70. Approximately twenty years have passed since judgment was given in Estate of Sharon Gavriel v. Gavriel [1]. The change in legislation that was desired has failed to come, but a change in the legal climate has indeed occurred. It appears that the time has come to recognize in our legal system the head of damage of loss of earning capacity in the ‘lost years.’

A survey of the arguments made against the awarding of compensation for the ‘lost years’ shows that in practice these arguments fall under two main objections: the first is that the death of the injured person removes the foundation for awarding the compensation — ‘where there is no life, there is no loss of capacity’ or ‘where there is no enjoyment of the compensation, there is no compensation.’ The second is that there is a difficulty in assessing the damage and protecting the interest of the tortfeasor not to pay double compensation. The first main objection raises the question of the external balance — had it not been for the accident, the injured person would have earned a certain amount, and now, as a result of the accident, he cannot earn that amount. Does the awarding of compensation balance the scales? The second main objection concerns the internal balance. The accident gives rise — on the material plane — to gains and losses. Can both of these be taken into account in calculating the compensation?

My answer to both questions is yes. With regard to the first main argument, I believe that the award of compensation for the loss of earning in the ‘lost years’ corrects — admittedly not in the full sense of the word but in important senses — the major imbalance in the external balance that was caused by the wrongful act of the tortfeasor. The injured person has been deprived, by the wrongful act, of the ability to earn income and to make use of it for his needs and for those of his family. Awarding compensation addresses the need to take this into account, and ensures that the lack of balance caused by the tort will not remain unaddressed especially in cases where the result of the tortious act is particularly serious. Awarding compensation reflects the approach that as a result of the tortious act, the injured person is deprived of an asset — his earning potential — that he would have had if it had not been for the tortious act. The dispute revolves, in practice, around the question of the number of units of time in which this damage should be recognized. However, the time element is also a significant part of the ‘after’ pan in the external balance, since had it not been for the tort, the earning capacity would be expected to continue throughout the working life expectancy of the injured person. In other words, there can be no dispute as to what are the units of time in which the injured person would have continued to earn, had it not been for the tortious act, and what are the units of time in which he will in practice be able to earn as a result of this act.

Moreover, the award of compensation for the ‘lost years’ prevents the arbitrary results according to which compensation is not awarded for the loss of earnings to an injured person whose life expectancy is shortened, while compensation on this head of damage is awarded to an injured person in a permanent vegetative state, or to the estate for pain and suffering and reduction of life expectancy, all of which without any really adequate justification for the distinction. We should emphasize that also with regard to the injured person in a permanent vegetative state, the loss of earning capacity extends over units of time in which his physical and financial welfare is diminished and he is unable to enjoy the compensation money. This is certainly also the case with regard to the deceased injured person, in so far as concerns the non-pecuniary damages recognized in our legal system. Notwithstanding, case law has held that balancing the scales requires awarding compensation in these cases, and a coherent approach requires also awarding compensation here for loss of earning capacity in the ‘lost years.’ Perhaps most importantly of all, the awarding of the compensation for the ‘lost years’ (to the living injured person) ensures that a situation will not arise in which, although the dependants have been deprived by the tortious act of the support of the injured person — support that they would have received had it not been for that act — this damage will remain unremedied.

The second main objection concerns, as aforesaid, the internal balance and the need to prevent a double payment. The courts are accustomed to deal with claims of this kind, which means that the awarding of compensation must be done while taking into account the pecuniary gain and loss that arise from the tortious act, and with safeguards to prevent double compensation. We discussed above the rules that should be applied in this regard. This is the sole significance of the second main objection, and it has no effect on the substantive question concerning the right to compensation.

71. What emerges from all of the aforesaid leads us to one clear conclusion, namely that we should recognize the entitlement of the injured person to compensation for the lost years of earnings. This applies both to the claim of the living injured person and to the claim of the estate. It cannot be denied that the issue of the ‘lost years’ can be solved in other ways. There is also no doubt that one of the strongest reasons for awarding damages to the living injured person for the ‘lost years,’ namely the reason that concerns ensuring the future of the dependants, does not apply to a claim of the estate, in view of the fact that s. 78 of the Ordinance does not prevent the dependants from filing a claim for loss of support. In a claim of an estate, like the one before us, in which the injured person who died was a young child, there are special difficulties, as we have set out above. There is no obstacle, of course, to the legislature changing the legal position, whether on the issue of the ‘lost years’ in general, or on the issue of the right of the estate to compensation for this head of damage. But I am of the opinion that until such a change, if any, is made, we should adopt the approach that has been accepted, as aforesaid, in many other legal systems, according to which the living injured person, or his estate, is entitled to compensation for the damage of loss of earning capacity in the ‘lost years.’ A proper assessment of the compensation will balance the undesirable consequences of the fundamental determination.

72. The result is that the appeal in CA 140/00, in so far as it concerns the question of the entitlement of the deceased’s estate to compensation for loss of the deceased’s earning capacity in the ‘lost years’ should be allowed. The case is therefore returned to the District Court, so that it may determine the amount of the compensation for this head of damage.

Now let us turn to the other questions that arose in the appeals before us.

Punitive damages

73. Section 76 of the Torts Ordinance provides, with regard to the compensation for carrying out a tortious wrong, as follows:

‘Compensation may be awarded on its own or in additional to, or instead of, an injunction; but if (1) the plaintiff suffered damage, compensation may be awarded only for that damage that is likely to result naturally in the normal course of things and that resulted directly from the tort of the defendant.’

It has already been said that the word ‘compensation,’ as it appears in the Torts Ordinance, tells us tortious relief is not declaratory or penal, but remedial, and it is intended to remove the damage and remedy it (CA 1977/97 Barzani v. Bezeq, the Israel Telecommunication Corp. Ltd [53]; Barak, ‘Assessing compensation in personal injury: the law of torts as it is and as it should be,’ supra). Indeed, as we have pointed out above, the purpose of compensation is to return the injured person, in so far as this is possible by means of a payment of money, to the same position he would have been in at the time of the tortious act, had there been no tortious act. This purpose is part of the fabric of the principle that a person is only liable for compensation for damage that he caused. This principle finds expression in making liability in torts conditional upon the existence of damage that the injured person suffered and upon a causal link between the tortious act and that damage.

74. Nonetheless, there are legal systems that recognize a relief of punitive, exemplary or vindictive damages, namely ‘damages that the tortfeasor must pay to the injured person in an amount that does not reflect an assessment of the damage that the tortfeasor caused to the injured person by the tort, but that intends to punish the tortfeasor for his dangerous conduct and thereby to express revulsion at it’ (A. Barak, Law of Torts — General Principles of Torts, supra, at p. 579). The punitive damages are distinguished from aggravated damages, which also take into account the seriousness of the tortfeasor’s conduct, but express ‘a genuine assessment of the damage caused [to the injured person], when this damage has been aggravated by the tortfeasor’s improper conduct’ (ibid. at p. 579; see also Khodaparast v. Shad [151]; Vorvis v. Insurance Corp. of British Columbia [129]; A. Beever, ‘The Structure of Aggravated and Exemplary Damages’ 23 Oxford J. L. Stud. 87 (2003)). The distinction between punitive damages and aggravated damages was described by Justice Kennedy as follows:

‘aggravated damage for conduct that shocks the plaintiff; exemplary (or punitive) damages for conduct which shocks the jury’ (Muir v. Alberta [130], at p. 714).

Punitive damages, therefore, do not rely upon a foundation of ‘remedy’ or ‘reparation.’ The rationale behind these is to punish and deter (see Hill v. Church of Scientology of Toronto [131], at p. 1208). On the essence of punitive damages, and the purpose underlying them, the House of Lords made the following remarks:

‘Exemplary damages or punitive damages, the terms are synonymous, stand apart from awards of compensatory damages. They are additional to an award which is intended to compensate a plaintiff fully for the loss he has suffered, both pecuniary and non-pecuniary. They are intended to punish and deter’ (Kuddus v. Chief Constable of Leicestershire Constabulary [152]).

75. The non-remedial nature of punitive damages constitutes a challenge for the classical clear-cut distinction between civil law — which focuses on compensation — and criminal law — which focuses on punishment. Civil law has always been regarded as seeking mainly to regulate relationships between individuals, and from this perspective punitive damages are classified as an anomaly. In this vein, concern has been expressed more than once that recognizing a power to award punitive damages introduces into civil law a function that is reserved for criminal law, while ‘compromising’ on the rules of evidence, the burden of proof and the rules of procedure that apply in criminal proceedings. Moreover, it has been claimed that awarding punitive damages imposes on the tortfeasor a risk of a ‘double sanction,’ where these are in addition to criminal sanctions. It has also been said that punitive damages are a windfall for the injured person, since they are intended to add to the remedial compensation that he has been awarded for his damage. Following this line of reasoning, it can be argued that even if it is justified to fine the tortfeasor, it does not necessarily follow that it is right that the injured person, rather than the State, should receive the sum (see Cassels, Remedies: The Law of Damages, supra, at p. 258; Beever, ‘The Structure of Aggravated and Exemplary Damages,’ supra; Cassell & Co. Ltd v. Broome [153]).

But contrary to all of the aforesaid there are significant reasons in favour of recognition of a power to award punitive damages, in those cases where the conduct of the tortfeasor is especially grave or it involved a serious infringement of constitutional rights. On a theoretical level it is argued that the distinction between civil law and criminal law is not so clear-cut, and these two branches spread out towards one another and intertwine, and it is even possible to distinguish a ‘grey area’ of ‘punitive civil law’ (see, for example, LCrimA 2976/01 Assaf v. State of Israel [54]; K. Mann, ‘Punitive criminal sanctions,’ 16 Tel-Aviv University Law Review (Iyyunei Mishpat) 243 (1991)). In the practical sphere, the added value inherent in awarding punitive damage has been emphasized especially in the deterrent effect and education against acts that should be censured, and in strengthening the protection of rights that deserve protection (see Conway v. INTO [162]). This is often the case in contexts or circumstances which the criminal trial cannot reach. Even the argument concerning the injured person receiving a windfall has been given a certain answer that ‘he can only profit from the windfall if the wind was blowing his way;’ in other words, the injured person who took the trouble to promote the public interest inherent in the awarding of punitive damages is the most appropriate person to receive them (see Cassell & Co. Ltd v. Broome [153]). It should also be noted that where a criminal proceeding also took place with regard to the tortious act, its outcome can be taken into account in the punitive damages (for these and other considerations, see also the detailed report of the Law Reform Commission in Ireland, which was published in the year 2000, with the title Report on Aggravated, Exemplary and Restitutionary Damages.

76. The economic analysis of the law of torts gives punitive damages an important role in promoting the purpose of effective deterrent. As we have stated within the framework of the discussion about the issue of the ‘lost years,’ it is customary to say that one should aim for compensation that reflects the damage that was caused. But an additional parameter affects the calculation, and this is the chance that no liability will be imposed at all for the tortious act. Indeed, not every tortious act leads to a claim in tort. Various factors play a part in this, including the costs of the claim or the injured person’s uncertainty as to whether his damage was caused by a tortious act or as to who the tortfeasor was. There are therefore some who think that punitive damages ought to be awarded, in cases where if this is not done, the deterrent will be defective because of the possibility that tortfeasors will evade liability. The amount of the punitive damages must, according to this approach, reflect the chance that the tortfeasor will not be found liable for his tort. Thus, for example, if there is a 25% chance that the tortfeasor will indeed be found liable for the damage that he caused, and the damage is in an amount of NIS 100,000, then the amount of the total compensation should be in an amount of NIS 400,000, of which NIS 100,000 are ‘remedial’ damages, and the remainder — NIS 300,000 — are ‘punitive’ damages (see A.M. Polinsky & S. Shavell, ‘Punitive Damages: An Economic Analysis,’ 111 Harv. L.Rev. 869, at p. 882).

77. The question of punitive damages is, therefore, a multifaceted one. In any event, in view of the unique nature of punitive damages, case law has usually treated them with reservations, or at least caution, even though it is possible to find, in the various legal systems, different approaches to the issue. Case law in England held, in the past, that the court may award punitive damages in any case of tort (Loudon v. Ryder [154]), but in 1964 the House of Lords, per Lord Justice Devlin, sought to limit punitive damages to certain cases only, on the grounds that such damages can lead to an overlap of the roles of civil and criminal law. Therefore Lord Devlin was of the opinion that punitive damages should not be awarded except where there is an express provision of statute and in two additional categories of cases: the first, cases where civil servants acted oppressively, arbitrarily or unconstitutionally, and the second, where the tortious act of the tortfeasor was planned by him with the purpose of procuring for him, the tortfeasor, a benefit in an amount exceeding the amount of the expected compensation. The purpose of the latter category is to deprive the defendant of the fruits of his tort, and to make it clear to him — and to others — that ‘tort does not pay’ (see Rookes v. Barnard [155]); this approach was expressed again by the House of Lords in Cassell & Co. Ltd v. Broome [153]). In one case it was held that the awarding of punitive damages should be reduced even further, so that punitive damages will be awarded only where the cause of action was recognized, for this purpose, before the judgment in Rookes v. Barnard [155] was given (see A.B. v. South West Water Services Ltd [1993] Q.B. 507; [1993] 1 All ER 609) but this restriction was rejected recently in Kuddus v. Chief Constable of Leicestershire Constabulary [152]. In Kuddus, as in many previous judgments, the judges were divided in their opinion as to whether punitive damages are an important tool in dealing with defective conduct of tortfeasors and infringement of the rights of injured persons (Lord Nicholls and Lord Hutton), or whether it was an anomaly that ought not to be recognized in the law of torts (Lord Scott). The Law Commission proposed that punitive damages should continue to be recognized, but their scope should be redefined, so that it would be possible to award them in any case of torts where the defendant ignored the rights of the plaintiff deliberately and outrageously (see UK Law Commission, Aggravated, Exemplary and Restitutionary Damages, Law Com. no. 247 (1997). The matter has not yet been dealt with in legislation (see W.V.H. Rogers, Winfield & Jolowicz on Tort (sixteenth edition, 2002) at p. 757).

78. The restrictions that were delineated in Rookes v. Barnard [155] were not adopted verbatim in countries such as Canada, Australia and New Zealand (see Vorvis v. Insurance Corp. of British Columbia [129]; Uren v. John Fairfax & Sons Pty Ltd [110] — a judgment that was upheld by the Privy Council in Australian Consolidated Press v. Uren [157]; Taylor v. Beere [163]; see also in Ireland, Conway v. INTO [162]). Notwithstanding, the courts there restricted the awarding of punitive damages to exceptional cases, especially those in which the conduct of the defendant is outrageous or deliberate to a degree that justifies his being penalized by means of finding him liable to pay the plaintiff a kind of ‘civil fine.’ The purpose of this is to give expression to the disgust of the court, and so that the tortfeasor and others may see and be afraid (see Hill v. Church of Scientology of Toronto [131], at p. 1208). A broader approach, with regard to punitive damages, is found in case law in the United States, from the viewpoint of the grounds for awarding them and from the viewpoint of the willingness to make use of them as a deterrent, as well as from the viewpoint of the size of the amounts awarded (see and cf. B.M.W. of North America Inc., v. Gore [105]).

It should be noted that an award of punitive damages focuses usually on torts involving intent, where the conduct of the tortfeasor deserves condemnation. Various legal systems have recognized the possibility of awarding punitive damages also in claims based on the tort of negligence, but the courts do this, as a rule, in limited and exceptional cases (see P.H. Osborne, The Law of Torts (Toronto, 2000) at p. 104; Trindade & Cane, The Law of Torts in Australia, supra, at p. 530; Lamb v. Cotogno [111]; Coughlin v. Kuntz [132]). The Privy Council recently held, in an appeal on the Court of Appeal in New Zealand, by a majority of three judges against two, that, in principle, punitive damages may be awarded also in cases of negligence that do not involve intent or awareness, provided that the basic condition of outrageous conduct exists. The majority opinion regarded the mental state of the tortfeasor as of great importance, in view of the approach that the purpose of damages of this kind is to punish, and not to express the dissatisfaction of the court at the conduct (A. v. Bottrill [158]; A. Phang & P.W. Lee, ‘Exemplary Damages — Two Commonwealth Cases,’ 62(1) C.L.J. 32 (2003)).

79. The courts in Israel have recognized the possibility of finding a tortfeasor liable for punitive damages. Already in CA 216/54 Schneider v. Glick [55], it was held that:

‘The attack of the appellant on the respondent was deliberate, not preceded by immediate provocation, and it was carried out with a savageness that was intended to shame the respondent in public. The court may take into account these special factors, such as the evil intent of the attacker and the shame that the victim suffered, in determining punitive damages… taking into account all of these factors, we find that the circumstances justified imposing a substantial amount as general damages…’ (ibid., at p. 1335).

Case law has repeatedly held that the courts in Israel have the power to award punitive damages (see CA 81/55 Kochavi v. Becker [56], at p. 234; CA 277/55 Rabinowitz v. Sela [57]; CA 30/72 Friedman v. Segal [58], at p. 237; CA 670/79 HaAretz Newspaper Publishing Ltd v. Mizrahi [59], at p. 205), even though this approach has been criticized (I. Englard, A. Barak, M. Cheshin, The Law of Torts — General Principles of Torts, second edition, G. Tedeschi ed. (1976), at pp. 583-584; see also the remarks of Justice Kister in CA 711/72 Meir v. Governors of the Jewish Agency for Israel [60]). There are those who think that we should consider the effect of the Basic Laws on this issue (CC (TA) 1549/96 Levy v. Hadassah Medical Organization [78]). In practice, the courts in Israel are not accustomed to award punitive damages, and they certainly do not do this frequently (CA 3654/97 Kartin v. Ateret Securities (2000) Ltd [61], at p. 406). It should be noted that Israeli law has express statutory provisions that specify, in certain contexts, an express power to award punitive damages (see for example s. 183 of the Patents Law, 5727-1967). The draft law of MK Nechama Ronen, in 2001, according to which a provision concerning punitive damages would be added to the Torts Ordinance, did not become legislation (draft Torts Ordinance [New Version] (Amendment — Punitive Damages) Law, 5762-2001). According to the draft law, the court might find the defendant liable for damages, in addition to the damages awarded under s. 76 of the Ordinance, ‘if it was held that the defendant acted in a way deserving of censure, and one of the following: (1) with the purpose of causing damage to another; (2) while deliberately and knowingly ignoring the rights or security of the other; (3) with gross negligence.’ It was also provided in the draft that by determining the proper quantum of punitive damages the court may consider, inter alia, the foreseeability — in theory and in practice — of the damage that was caused as a result of the acts or omissions of the defendant and the period of time during which the defendant carried out the acts or omissions that caused the plaintiff his damage.

80. In our case, the District Court was of the opinion that ‘the omissions for which the defendants who were convicted in the judgment were responsible are very serious omissions,’ but at the same time it emphasized that there are those who cast doubt upon the actual power to award punitive damages, and he said that, as a rule, ‘the courts only award punitive damages for torts that require intent or a deliberate act.’ It seems to me that we should not intervene in the conclusion of the trial court in this regard. The negligence of the respondents, as reflected in the judgment convicting them, is indeed shocking and led to a tragic outcome. Notwithstanding, it appears that even if the courts in our legal system have power to award punitive damages — and we are not required to decide this issue today — there is insufficient cause, in this case, to intervene in the decision of the District Court not to award the appellants punitive damages.

Reduction of life expectancy

81. In the category of non-pecuniary loss for personal injury are two main heads of damage, pain and suffering and reduction of life expectancy or loss of life expectancy. The head of damage of loss of life amenities is not recognized, in Israeli law, as an independent head of damage (see Weizman v. Zucker [48]; CA 372/65 Dehan v. Francis [62]; Estate of Robert Freilich v. State of Israel [21]; it should be noted that in England the head of damage of reduction of life expectancy has been rejected as an independent head of damage, by the Administration and Justice Act 1982, and now it falls within the scope of pain and suffering).

There are those who recoil from awarding compensation for non-pecuniary loss, because of the difficulty in estimating the amount thereof. It has already been said that in cases such as these ‘there is more speculation than calculation,’ since ‘how is it possible to assess, accurately or even approximately, in money or money’s worth, the pain and suffering or the anguish and humiliation of a person whose hand or leg has been amputated, or who walks around with anxiety in his heart because his days on earth are numbered’ (Grossman v. Roth [13], at p. 1254). It has also been written that this head of damage ‘will not be determined by weights and measures of logic but with morality and emotion,’ since ‘no money is equal to the loss of life nor will it compensate for deprivation of the pleasures of life’ (CA 15/66 Shinar v. Hassan [63], at pp. 460, 463; see also CA 283/89 Municipality of Haifa v. Moskowitz [64], at p. 732).

82. Nonetheless, the compensation for the head of damage of reduction or loss of life expectancy is firmly established in out legal system; even the somewhat paradoxical approach whereby compensation for this head of damage should be minimized precisely because of the difficulty in assessing its amount has become discredited. The need for measured compensation is not necessarily equivalent to a need for modest compensation. Indeed, in some legislation, the assessment of non-pecuniary loss is done on a universal rather than an individual basis (see the Road Accident Victims Compensation Law, 5735-1975; Road Accident Victims Compensation (Calculation of Compensation for Non-Pecuniary Loss) Regulations, 5736-1976; Liability for Defective Products Law, 5740-1980; CA 235/78 Hornstein v. Ohavi [65], at p. 349; CA 184/80 Eigler v. HaMagen [66]; CA 2801/96 El-Al Israel Airlines Ltd v. Yifrach [67]). This is the reverse side of the coin whose obverse is the strict liability arrangement that these statutes provide (see also CA 675/82 Asadi v. Cohen [68]). However, the maximum rate prescribed in the Compensation Law or in the strict liability statutes cannot constrain the court when it is awarding compensation for non-pecuniary loss of a plaintiff who was injured by a wrongful act under the Torts Ordinance (CA 180/88 Ozeri v. Sarufi [69]; CA 3843/90 Ohayon v. State of Israel, Ministry of Defence [70]). Indeed, when we are concerned with the general law of torts, ‘the law is based on focusing on the individual damage that occurred to the injured person, and for which the tortfeasor is responsible, and the need to return the injured person to his original position’ (Naim v. Barda [3], at p. 775). In so far as the head of damage of reduction or loss of life expectancy is concerned, an important factor is the length of the period of the ‘lost years,’ even though obviously one should not adopt a ‘mathematical’ calculation that determines a ‘rate’ for each year of life (see and cf. Shinar v. Hassan [63]; CA 286/55 Wolfovitz v. Fisher [71]; CA 402/75 Estate of Yisrael Mashiach v. Rosenblum [72]; Estate of David Azoulay v. Vulcan Casting Enterprises Ltd [24]).

83. Abandoning ‘modest’ compensation in favour of proper compensation is naturally expressed, in Israeli law as in other legal systems, in an increase in the amount of compensation for non-pecuniary heads of damage. This trend has found expression in case law (see, for example, CA 2517/93 A v. Katahin, Takdin [73]; CA 6978/96 Amar v. General Federation Medical Fund [74]; CA 2055/99 A v. Israel Chief Rabbinate [75]; E. Rivlin, ‘Compensation for Intangible Loss and Non-Pecuniary Loss — Broadening Trends,’ Shamgar Book, part 3, 51-62 (2003)). This trend received expression in England, where a comprehensive examination was made of this issue by the Law Commission, and in a report published in 1999 the Commission recommended that compensation for pain and suffering and loss of life amenities should be increased, where ‘serious personal injury’ is caused. Only a short time passed until, in 2000, the Court of Appeal in England was presented with this issue, in Heil v. Rankin [159]. The court adopted, in that case, most of the Commission’s recommendations, and stated that the principle concerning full — i.e., proper, reasonable and just — compensation applies both to pecuniary loss and non-pecuniary loss. Notwithstanding, the court emphasized that it did not intend to change the accepted principles underlying the assessment of loss, but only to propose revised guidelines that would give modern validity to the traditional principles concerning the purpose of awarding compensation. In practice, the court in England determined the range of the compensation for non-pecuniary personal injury, in severe cases, in amounts varying between £150,000 and £200,000.

The trend that we have discussed has not overlooked the awarding of compensation for reduction or loss of life expectancy. Case law has held for some time that compensation for this head of damage should be substantial, since it is concerned with the loss of something that is the most valuable thing of all (Estate of David Azoulay v. Vulcan Casting Enterprises Ltd [24]; Estate of Yisrael Mashiach v. Rosenblum [72]). Indeed, in several judgments given recently, compensation for a reduction of life expectancy has been awarded in larger amounts than those customary in the past (see The Technion, Israel Technological Institute v. Twister [9]; see also CA 163/99 Estate of Diav Mizawi v. Dori Engineering Works Co. Ltd [76]; CA 5938/97 Peleg v. Tardiman [77]; CC (Hf) 1581/94 Hattib v. State of Israel [79]).

The judgment of the District Court in our case is consistent with this trend, and the amount of compensation that was awarded for the head of damage of loss of the life expectancy — when the deceased passed away at twelve years of age and his life expectancy was reduced by 59 years — does not justify intervention in either direction. In this determination I have taken into account the fact that, according to our approach, compensation should be awarded to the estate for the loss of the deceased’s earning capacity in the ‘lost years.’

Therefore the counter-appeal should be dismissed, as well as the arguments raised in this regard in CA 550/01.

84. All the other arguments raised in CA 550/01 do not justify, in my opinion, intervention in the judgment of the District Court. I would like to say a few words on the appellants’ claim that the estate should be warded compensation for pain and suffering. In principle, the compensation for this head of damage is awarded, in Israeli law, according to the subjective-functional approach. The ruling that was given by the majority in Dehan v. Francis [62] is that compensation should not be awarded for pain and suffering, where the injured person was unconscious from the moment of the injury until the moment of death. In CA 773/81 Estate of Robert Freilich v. State of Israel [21] Justice Barak held that ‘the loss of consciousness is compensatable damage, since the loss of consciousness is comparable to a reduction in life expectancy, and the latter is compensatable. The compensation is not for the pain and suffering resulting from awareness of the damage but the loss of all life apart from the breath of life in the period of loss of consciousness.’ In our case, it was not proved that the deceased suffered pain and suffering from the accident, and even if we regard the time that passed from the accident to the death — in which apparently the deceased was unconscious — as falling within the scope of ‘reduction of life expectancy’, this addition is minimal and it cannot change the amount of the compensation for this head of damage.

Conclusion

85. In view of all of the aforesaid, I am of the opinion that the appeal in CA 140/00 should be allowed, in the sense that the case should be returned to the District Court for the purpose of determining the amount of compensation payable to the estate for loss of the deceased’s earning capacity in the ‘lost years.’ The appeal on the question of punitive damages, the counter-appeal against the amount of the compensation for reduction of life expectancy, and the appeal in CA 550/01 are denied.

The respondents shall pay the court expenses and the legal fees of the appellants in a sum of NIS 25,000. 

 

 

President A. Barak

I agree.

 

 

Vice-President T. Or

I agree.

 

 

Justice E. Mazza

I agree.

 

 

Justice D. Dorner

I agree.

 

 

Appeal allowed in part. Counter-appeal denied.

22 Adar 5754.

15 March 2004.