Crim. A. 44/52

 

 

 

KASSEM HUSSEIN DIAB

v.

ATTORNEY-GENERAL

 

 

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

[December 2, 1959]

Before: Smoira P., Silberg J., and Witkon J.

 

 

 

 

Statutes - Interpretation - Use of marginal note - Criminal Code Ordinance, 1936, s. 53(a) - Nature of civil war - Distinction between civil commotion, civil war and international war - Arab and Jewish hostilities prior to termination of Mandate - Effect of termination of Mandate and invasion by Arab States.

 

            The appellant was charged and convicted under section 53(a) of the Criminal Code Ordinance, 19361), with promoting civil war in that being a resident of Israel, he left the country, enlisted in an Arab "army" and served in it against Israel during the Arab-Israel War. The appellant contended that the acts with which he was charged did not constitute the offence described in the section which refers only to a civil war in the sense of a fight between residents within the State.

           

            Held: That although the war in which the appellant had participated was not a civil war, and he was therefore not guilty of the offence charged., section 53(a) of the Criminal Code Ordinance, 1936, properly interpreted in the light of the marginal note to the section, which note may be used in interpreting mandatory legislation, created the offence of promoting civil war.

 

Israel case referred to:

(1)       Cr. A. 53/49; Weil v. Attorney-General, 1950, 2 P.E. 438.

 

English cases referred to :

(2)       E. v. Hare, (1934) 1 K.B. 354.

(3)       Attorney-General v. Great Eastern Railway Company, (1879), 11 Ch. D. 449.

(4)   In re Woking Urban District Council (Basingstoke Canal) Act, 1911, (1914) 1 Ch. 300.

(5)       Claydon v. Green; Green v. Claydon, (1867-8), L. R. 3 C.P. 511.

(6)       In re Venour's Settled Estates, Venour v. Setton, (1875-6), 2 Ch. D. 522.

(7)       Sutton v. Sutton, (1883), 22 Ch. D. 511.

 

American cases referred to:

(8)       Brown v. Hiatt, 1 Dillon 379.

(9)       Juando v. Taylor, 13F. Cas. No. 7558. Cit. in 67 C.J. 337, note 16(b).

(10)     Underhill v. Hernandez, 18 S Ct. 83; 168 U.S. 250, 42 L. Ed. 456.

(11)     The Amy Warwick, Fed. Cas. No. 341, 64 Fed. Digest 245-246.

(12) Salisbury Hubbard & Co. v. Harnden Express Co., 10 R.I.. 244 cit. in 67 C.J.: 336, note 16(a).

(13)     Mayer v. Reed & Co., 37 Ga. 482, cit. in 67 C.J. 337, note 16(c).

 

E. Toister, for the appellant.

Miriam Ben-Porat, Deputy State Attorney, for the respondent.

 

SILBERG J. The appellant was convicted by the Haifa District Court of an offence under section 58(a) of the Criminal Code Ordinance, 1936, and sentenced to seven years imprisonment. The act with which he was charged, put very shortly, is that at the end of 1948 or the beginning of 1949, while he was an Israel resident, he joined the Arab "Army of Rescue" (Kawkji's Army) as a soldier, at the time when it was stationed and active on Syrian and Lebanese soil, facing the northern frontier of the State of Israel. Counsel for the appellant contests the jurisdiction of the court below, but his main submission on the merits of the case is that the act with which his client is charged, even if it took place, is not an offence within the meaning of the section.

 

            Why is that so ? Because the Mandatory legislator, who bequeathed the section to us, never intended to provide for such a case as this; in section 58(a) he provided only for a civil war, namely, a fight between neighbours, within the State, arising from religious, communal or class hostility and the like, and not for war which comes from outside, in which the opposing sides are fighting each other, not for victories within the State, but for the conquest of the State itself.

           

2. That submission is well worthy of consideration, and the appellant's fate here depends upon the way it is decided. There arise, first of all, questions concerning the construction of statutes, and for the first time in this court we shall have also to consider, to the extent to which it concerns our case, the legal character of the Arab-Israel war.

 

3. First, let us consider the wording of the above-mentioned section 53(a). The section, in the original English, is as follows:

 

Promoting Civil War.

"53.     Any person who :-

 

(a)   Without lawful authority, carries on, or makes preparation for carrying on, or aids in or advises the carrying on of, or preparation for, any war or warlike undertaking with, for, by or against any section, race or body of persons in Palestine;

            ………………………………………………………

        is guilty of a felony and is liable to imprisonment for life."

            In place of "Palestine" we must now read "Israel", by virtue of section 15 of the Law and Administration Ordinance, 1948.

           

            In the margin of that subsection, there appear the words "Promoting Civil War" (the words that come after them relate to subsection (b).) The first question that calls for consideration (and it is a great pity that counsel for the parties did not deem it necessary to develop their argument on this point) is this: is it possible to rely on that marginal note, and how far can we surmise from it the meaning of the Statute? Only if and when we have answered that question affirmatively, do we have to examine the meaning of the term "civil war", in order to arrive at the further, and final question, namely, whether or not the present appellant's act amounted to aiding or taking part in a civil war.

           

4. Now this question - the question of the marginal note (or headings generally) as a source for interpreting the intention of the legislator - has been considered countless times in English case-law, and the rule is still a somewhat vague one. The principle laid down is that you cannot be guided by the marginal note; but that is only a formula, more honoured in tile breach than in the observance. On the one hand, it is clear that the note has no preferential status, and the words of the note, whether it be a heading, a sub-heading or a marginal note, cannot contradict or settle what is stated in tile statute itself, for why should we prefer the margin to the text ? On the other hand, there is apparently nothing to prevent relying on the marginal note in order to resolve an ambiguity appearing in the faulty drafting of the statute.

 

            Authority for that - for both parts of the concept - may be found in the words of Avory J. in the case of R. v. Hare (2). There a woman was charged with committing an indecent act on a child of 12, by seducing him into having sexual intercourse with her, and she was brought to trial on a charge according to section 63 of the Offences against the Person Act, 1861. The defence argument was that the heading to sections 61-63 was "Unnatural Offences", a sign that it was intended to refer to sodomy, bestiality and the like, but not to an act of the kind mentioned above. The court rejected the argument, saying :-

           

            "Headings of sections and marginal notes form no part of a statute. They are not voted on or passed by Parliament, but are inserted after the Bill has become law."

 

            Thus far the principle, and immediately comes its application :-

           

            "Headnotes cannot control the plain meaning of the words of the enactment, though they may, in some cases, be looked at in the light of preambles if there is any ambiguity in the meaning of the sections on which they can throw light."

 

                        (Avory J. in Hare's case (2), at pp. 355-356.)

           

            Since in that case there was no ambiguity in the wording of the statute, it being written "Whosoever...", and that includes a woman, the court refused to restrict the criminal provision on account of the heading.

           

            So we may refer to those headings and preambles in order to clarify the ambiguous meaning of the statute, and it may be that the intention of the words in the second passage above quoted was a little wider, it being : that it is permissible in general to make use of all those "accessories", whenever the wording of the statute is a little unclear, and its darkness needs to be dispersed by some extraneous light, by means of a source of construction that is not to be found, to the reader's regret, in the statute itself. If that is the intention of the words, then there is as a rule no great practical value in all those trappings since, generally speaking, the person construing a statute has no need for the heading, except in order to fill in what is lacking in the statute.

 

5. But there is yet a further ground for reducing the scope of Avory J.'s statement and that, too, is likely to restrict the application of the above-stated principle of construction, as will immediately become apparent. Why cannot we learn from the headings, and for what reason do they not constitute part of the statute? It is because those headings "are not voted on or passed" by the legislature. That is the one and only ground, and we find it given as the decisive reason in a number of other judgments. Baggallay L.J. said:-

 

            "I never knew an amendment set down or discussed upon the marginal note to a clause. The House of Commons never has anything to do with the amendment of the marginal note. I never knew a marginal note considered by the House of Commons."

 

            (Baggallay L. J., in Attorney-General v. Great Eastern Railway Co. (3), at p. 461.)

           

            In another judgment, we read the following remarks of Phillimore L. J.:-

           

            "I am aware of the general rule of law as to marginal notes, at any rate in public general Acts of Parliament; but that rule is founded, as will be seen on reference to the cases, upon the principle that those notes are inserted not by Parliament nor under the authority of Parliament, but by irresponsible persons. Where, however,...... the marginal notes are mentioned as already existing and established, it may well be that they do form a part of the Act of Parliament. I do not, however, decide the case upon this ground."

 

            (Phillimore L. J., in the Woking Urban District Council (Basingstoke Canal) Act case (4), at p. 899.

           

            Willes J., in the case of Claydon v. Green; Green v. Claydon, 1911 (5), recounts the historical background to the matter, and tells us the following matters of interest, giving us a remarkable insight into the English love of tradition. These are his words, at pp. 521, 522:-

           

"Something has been said about the marginal note to section 4... I wish to say a word upon that subject. It appears from Blackstone's Commentaries..., that, formerly, at one stage of the bill in parliament, it was ordered to be engrossed upon one or more rolls of parchment. That practice seems to have continued down to the session of 1849, when it was discontinued, without however any statute being passed to warrant it... Since that time, the only record of the proceedings of parliament, - the important proceedings of the highest tribunal of the kingdom, - is to be found in the copy printed by the Queen's printer. But I desire to record my conviction that this change in the mode of recording them cannot affect the rule which treated the title of the act, the marginal notes, and the punctuation, not as forming part of the act, but merely as temporanea espositio. The act, when passed, must be looked at just as if it were still entered upon a roll, which it may be again if parliament should be pleased so to order; in which case it (that is, the statute) would be without these appendages, which though useful as a guide to a hasty inquirer, ought not to be relied upon in construing an act of parliament."

 

            It once happened that Jessel M. R. erred and thought that in his day marginal notes had already begun to appear in the Rolls of Parliament themselves, and for that reason he decided that they ought to be taken into account for the purposes of construing a statute. He said:-

           

            "...the marginal notes of Acts of Parliament now appear on the Rolls of Parliament, and consequently form part of the Acts;"

           

            (See In re Venour's Settled Estates, Venour v. Sellon (6), at p. 525.)

 

            But some years later he noticed his mistake and admitted it publicly from the Bench when he said:-

           

            "The dictum in that case (he is referring to the one cited above) is not strictly correct. I have since ascertained that the practice is so uncertain as to the marginal notes that it cannot be laid down that they are always on the Roll. But the title of the Act is always on the Roll" - thus he ends on a note of consolation.

           

            (See Sutton v. Sutton (7), at p. 51a.)

           

6. We see, therefore, that the whole matter turns on the cardinal question whether or not those headings and "adornments" came to the notice, and obtained the affirmation, of the legislative body - whether or not they received its official stamp of authority. The traditional English view is that the Parliamentary legislator has nothing to do save with what his eyes perceive in the Rolls - that self-same archaic Roll, full of antiquity, that the reader must read rapidly without name or title, without marginal notes and without punctuation - and whatever is not included, or does not have to be included, in this species of document is outside the statute, a kind of unnecessary and irrelevant adjunct of "irresponsible" persons who have no part in the legislative activity of the legislator.

 

7. Hence, in my opinion, only one conclusion, short and simple, falls to be drawn: that all that discussion on the interpretative value of headings has no application whatsoever in the totally different world of the Palestinian legislator. Mandatory Palestine was not particular in observing the separation of powers, and its legislator and administrator were fused together into one personality. Its statutes did not proceed from the chamber of a legislative body, and an electorate and its representatives had no hand in their making. They were composed behind closed doors by a group of professional experts, and were submitted for the signature of the High Commissioner. With the signature of the High Commissioner (after consultation with the "Advisory Council"), the document turned into a statute, and that was the sole official act of legislation. It is fairly safe to assume that the document put forward for signature was not devoid of marginal notes and headings, and so in any event that legislative signature also referred to the marginal notes of the statute. In the actual circumstances of the Mandatory regime there was no ground whatever for distinguishing between sections of the statute, considered and drafted by "responsible" persons, and adornments to the statute inserted, as it were, afterwards by "irresponsible" persons, for both of them were in fact drafted by those same expert officials before they all of them together received their official stamp of authority by the affixing of the High Commissioner's signature.

 

            Consequently, it appears to me that whatever may be the content and scope of the English rule regarding headings, here in Israel, so far as Mandatory legislation is concerned, there is nothing to prevent our receiving "interpretative inspiration" from the wording of the headings in assisting us to determine the meaning of the statute, so long as they do not contradict what is expressly stated in the body of the statute. If there is any contradiction, express or even implied, between them, then without question the statute is to be preferred, since in that event it is clear that the heading - the summary - is erroneous, and it was for that reason, so it seems to me, that Cheshin J. refused to rely on the marginal note in Weil v. Attorney-General (1).

 

            Support for this concept is to be found in an express provision in a statute. I have in mind the Trades and Industries (Regulation) (Amendment) Ordinance, 1939, Section 2 of that Ordinance alters the "Long Title" of the original Trades and Industries Ordinance, and makes it even longer by adding a number of words. Now, consider this matter carefully: if no value is to be attached to the heading, and we are not entitled to be guided by it, what would have induced the legislator to go to all that troubled The result is : here in Israel, as regards Mandatory legislation, there is value in the headings, and under certain conditions they may help us, to a lesser or greater extent, to understand the correct meaning of a statute.

           

8. Bearing these matters in mind, I pass to the provisions of the section in question: section 53(a) of the Criminal Code Ordinance, 1936. Briefly put, its purpose is the imposing of punishment for the carrying on of, or aiding in, a war or warlike acts against a section of the population of Palestine (now Israel). Now if the language of the section itself is somewhat vague and it may be interpreted in different ways, with the help of the marginal note any doubt in the matter is dispelled; it tells us frankly and distinctly that the reference is to civil war. The question is, therefore, what is the precise meaning of that term, and in what way is it distinguishable from plain ''war'' - war in the ordinary meaning of the word ?

 

            The answer - which is accepted also by English lawyers - is to be found not in English case-law, but rather in American case-law. In England, apparently, the courts have not yet had the opportunity of considering that question. This is hardly to be wondered at, seeing that, in modern times, the English people have very little experience indeed of such happenings and situations. Stroud, for example, in his Legal Dictionary (Second Ed., at p. 317), makes use of a definition taken from the famous American judgment in Brown v. Hiatt (8), and even Oppenheim, in his book on International Law (Sixth Ed., edited by Lauterpacht, at p. 173), adopts the definition found in American judgments, without expressly emphasizing the fact.

           

            The definition is as follows:-

           

"Civil war is when a party arises in a state which no longer obeys the sovereign, and is sufficiently strong to make head against him; or when, in a republic, the nation is divided into two opposite factions and both sides take up arms." (Brown v. Hiatt (8), at p. 379.)

 

            According to Oppenheim:

 

            "In the proper sense of the term a civil war exists when two opposing parties within a State have recourse to arms for the purpose of obtaining power in the State, or when a large portion of the population of a State rises in arms against the legitimate Government."

 

            In American case-law itself from which, as stated, the said definition has been taken, we find in addition to Brown's case (8) the following dicta on the question of when there is a civil war.

           

            "when a party is formed in a state, which no longer obeys the sovereign, and is of strength sufficient to make head against him."

 

(Juando v. Taylor (9).)

 

            And:-

 

            "Where the people of a country are divided into two hostile parties, who take up arms and oppose one another by military force."

           

(Fuller C.J., in Underhill v. Fernandez (10).)

 

            From a certain point of view American case-law regards the Civil War of the 19th century, the war between the North and the South, from 1861 to 1865, as an exception. The point is that in that war there were not two adversaries struggling within a single state framework, but that one of them, namely, the Southern States, sought to secede, and in fact seceded, from the body of the previous State which was common to both of them. To their way of thinking, the Confederate States were fighting a territorial war against another State, a foreign State. That, of course, was not the attitude and outlook of the States of the North. They regarded the Southerners as rebels against the realm, seeking to upset the primary arrangement and to establish for themselves in the State, though admittedly only in a part thereof, a government of their own, an illegitimate government. Since, as is well known, the campaign ended after a four years' struggle in the victory of the North and the return of the Confederate States to the bosom of their motherland, to the framework of the overall, common State, it is by the light of the "Northern outlook" alone that the character of the War as a whole is to be judged ex post facto. However, the fact that the Southern States themselves regarded the struggle in the light of a 'territorial' war, a war between States, was full of important legal consequences as regards the Northern States as well : it bestowed upon those States the international rights given in ordinary war to each of the belligerent States. It follows that, eventually, the American Civil War assumed a two-fold aspect : both that of a genuine civil war, and also that of a war between States. Indeed, that is what was said in one of the judgments dealing with this subject :

 

            "In the war with the so-called Confederate States the rebels were at the same time belligerents and traitors, and subject to the liabilities of each; while the United States sustained the double character of belligerent and sovereign, and had the rights of both, their rights as belligerents were unimpaired by the fact that their enemies owed (them) allegiance." (The Amy Warwick case, (11), pp. 245, 246.)

 

            We find the very same notion - the notion of the dual character of n civil war - expressed in another American judgment, though with a change of wording as well as a slight change in the reasoning. Here, there is a definite tendency to limit the technical juridical content of the term 'civil war' to the War of the American States in so far as it is thus not deprived of the description which it has attained in history. There the matter was set out in the following terms :

           

            "The term 'civil war' is sometimes and perhaps anciently more commonly used to denote a contest in arms between two great parties in the state for the control of the state, but without any design of separation. But the definition has been more extended in modern times. Our civil war was also a territorial war. The Southern party was for some years in absolute possession and control of a large territory, with a regularly organized government and courts. On the borders there were portions of territory where both parties claimed possession and both sides organised governments."

 

(Salisbury Hubbard & Co. v. Harden Express Co. (12).) 1

 

            It ought to be emphasized that this "modern" broadened notion of "civil war", and its being made to cover opponents, neither of whom wishes to live under the same roof, does not cancel out the remaining marks of identification that the authorities have given to this notion, and its classic definition remains in force. It is worth noting also that not everyone admits to this broadening of the notion and that there are those who expressly say that the American Civil War "was not a civil war, in its legitimate sense... it was a war between states". (Mayer v. Reed & Co. (13).)

           

            If we add up all those various definitions and endeavour to clothe them with a general, short and concise formula, we observe that "civil war" means the war of a citizen against the realm, or a war between citizen and citizen (through force of arms) for the purpose of obtaining power throughout the State or over a part of it. Emphasis is placed on the word "citizen", that is to say, it always concerns a citizen (more accurately, a group of citizens), struggling with the government or for the government of his State, and not of n State seeking to extend its government over the territory and citizens of a foreign State.

           

            Such is the legal definition of the term, and such is the plain meaning of the name in ordinary language in the history books. The war of Pompey and Julius Caesar in the First Century B.C.E.; the Roman "Wars of Succession" to the title of Emperor in the Second and Third Centuries C.E., Cromwell's rebellion against the monarchy in the middle of the 17th Century, and the Bolsheviks' war against the Provisional Government and afterwards against the "White Russians" in the present century - all these are called "civil wars" by historians, and in all of them are to be found the qualities pertaining to this term in the legal definition quoted above. I have never come across this description in use to describe an external war between kings and States.

           

9. Now that we have arrived at a determination of the legal conception of a "civil war", let us examine whether it fits the details of the case before us. To that end, I must return once more to the facts, and fill in what I omitted in the short and concise description given at the outset of this judgment.

 

            The present appellant was born in the village of Araba, which lies in the valley of Bet Netofa in Lower Galilee (that is the historical Erev, mentioned in the Jerusalem Talmud, Shabbath, "Kol Kitvei", and in other places). In the days of the Mandate he served for a certain period as a medical orderly in the Transjordanian Frontier Force, and with the approach of the end of the Mandate in March, 1948, he was demobilised and returned to his birthplace. Here he participated, apparently, as a volunteer in the Arab "Army of Rescue" (Kawkji's Army) which was active in that vicinity both before and after the establishment of the State, until the capture of the village by the Israel Defence Forces in October, 1948, during Operation "Hiram". When the village was captured the appellant stayed on, and was registered along with the remainder of its inhabitants in the first registration of residents which was carried out a few weeks after the capture. From all those facts, the court below concluded, and rightly so, that in the decisive period, namely, the end of 1948, the appellant was an Israel resident, a permanent resident of the said village of Araba.

           

            At the beginning of December, 1948, on a dark and wintry night, the appellant crossed the Israel-Lebanon frontier, enlisted in the Arab "Army of Rescue", and served in it for 6 months. This "Army of Rescue", so the court below found, was "an organised army, with an administration and a system of command", but no one seriously disputes the fact that, at that time, it operated within the framework, or at least under cover, of the Syrian Army, and that when in February, 1949, the appellant was seen in Lebanon by one of the witnesses, he was dressed in military uniform, and on his cap he wore the insignia of the Syrian Army. The appellant served in the Company of one Abou Ahmed from Tsipori, a well-known bandit leader from the days of the 1986 troubles in Palestine, and most of the soldiers in that Company were Palestinian Arabs. That Company carried on hostilities, operating on the sector of the Syrio-Lebanese Front opposite the northern border, and its object was, according to the evidence of one of the witnesses, "to attack the Jews". It is accordingly argued by the prosecution that the appellant aided in the war of the Arab "Army of Rescue" against the Jewish population of the State of Israel, and that that constitutes the offence dealt with in section 58(a) of the Code.

 

            This argument is entirely erroneous and amounts, indirectly and unintentionally, to a diminution of the whole conception of the War of Independence. With all due respect to those who put it forward, it lacks a sense of proportion and blurs the clear line dividing the pre-war "disturbances" from the warlike struggle itself which commenced with the establishment of the State. The Arab-Israel War was not a "civil war" but a war between sovereign States on both sides, in which the aggressors, the seven Arab States, sought to destroy all that the Jews had created and erase the State of Israel from the map. This was a "territorial" war, a war between States, and it makes no difference that the aggressor-invaders themselves did not recognise the political existence of the victim State. It was recognised immediately after its birth by powerful States, great nations of the earth, and became a living and actual reality on the political stage of the world. We never admitted that the Arab States came to help the Arabs of Palestine, or that the object of their war was to establish an independent Palestinian State within its former Mandatory borders, under the hegemony of the local Arabs. That, indeed, was the invaders' argument and ground for quarrel, as put forward by their spokesmen before the United Nations and in other forums, but the truth was very different. It may be that those few battalions that called themselves the "Army of Rescue" had their own particular ambitions, but they were not the ones who settled the aim of the war, and they were not the ones who had control of the manner in which it was waged. Their weight was too light and insignificant as against the weight of the armies of the seven States. It is not important, therefore, what the veteran bandit leader, Abou Ahmed from Tsipori, thought, or what the political aim of the men of his Company was. They served, willy-nilly, as tools in the hands of the invaders, and the latter's aims absorbed and swallowed up the aims of their unimportant assistants, the Arab "Army of Rescue. "

 

            Briefly put, the Arab-Israel War was not a "civil war" within the meaning of section 53(a) of the Code, and so whoever participated in that War against Israel, even if he was an Israel resident, cannot be charged with an offence under that section.

           

10. I said, "He cannot be charged with an offence under that section". I did not say that he cannot be charged with any offence at all. I am inclined to think that if an Israel resident, owing allegiance to the State, takes part in a war against the State of Israel, he may be charged with treason and brought to trial under section 49(1) of the Criminal Code Ordinance. This section, in its Mandatory form, imposes the death sentence on "any person who levies war against His Majesty in order to intimidate or overawe the High Commissioner". In the place of His Majesty as the sovereign (and the enemy in a war), there now comes the State of Israel, and instead of the High Commissioner as the Governing Authority (and as the object in the war), there comes the Government of Israel. They are, on any reckoning, "modifications as may result from the establishment of the State and its authority", within the meaning of section 11 of the Law and Administration Ordinance, 19481), and they also alter the content of section 49(1), while preserving its essential nature, namely, the prohibition of war against the sovereign, with the object of deposing the Government of the State or of intimidating it. That being so, it seems to me prima facie that we may alter the wording of that section so that it will henceforth read : "Any person who levies war against the State of Israel in order to intimidate or overawe the Government of Israel is guilty of treason and is liable to the punishment of death." The outcome will be that if the act is done, as in the present case, by an Israel resident owing allegiance to the State and who does not, therefore, enjoy the defence or exemption deriving from the principles of International Law (namely, that in the absence of a duty of allegiance he cannot be guilty of treason - see Oppenheim (ibid. at p. 322 sup.), he may be charged with treason and tried according to section 49(1) of the Criminal Code Ordinance.

 

            However - and this is the decisive point here - even if we accept that view, it will not alter the position of the present appellant in any way; for since in fact he was charged according to section 53(a), and not according to section 49(1), and the punishment to which an offender under section 49 is liable is more severe than the punishment to which an offender under 53 is liable (capital punishment in place of imprisonment), in accordance with section 52 of the Criminal Procedure (Trial upon Information) Ordinance 2)), as amended in 1939, and having regard to the proviso to section 72(1)(b) of that Ordinance3) we cannot substitute for the conviction under section 53(a) a conviction under section 49(1), even if we are of opinion that the appellant is indeed guilty of an offence under that section. The final conclusion therefore, is that we have no alternative but to quash the conviction of the appellant and set him free (unless he is being held for some other offence).

           

            In view of the conclusion which I have reached there is no need to express any opinion here on the remaining questions that arose in this appeal, including the submission that the lower court lacked jurisdiction which was pleaded by counsel for the appellant. For the same reason there is also no need to deal with the application to hear further argument on the question of jurisdiction that was submitted by the Deputy State Attorney.

           

            I am accordingly of opinion that the appeal should be allowed, and the conviction and sentence set aside.

           

SMOIRA P: I agree.

 

WITKON J: I agree.

 

Appeal allowed, and conviction and sentence set aside.

Judgment given on December 2, 1959.

 

1)          See infra p. 271.

1)          Law and Administration Ordinance, 1948, s 11:

Existing law.      11. The law which existed in Palestine on the 5th Iyar, 5708 (l4th May, 1948) shall remain in force, in so far as there is nothing therein repugnant to this Ordinance or to the other laws which may be enacted by or on behalf of the Provisional Council of State, and subject to such modifications as may result from the establishment of the State and its authorities

2)          Criminal Procedure (Trial upon Information) Ordinance, section 52:

Power to find guilty if attempt, etc., although accused not so charged

52. The court may find an accused person guilty of an attempt to commit an offence charged, or of being accessory after the fact, or may convict him of an offence not set out in the information and without amendment of the information notwithstanding that such offence is one within the jurisdiction of some other court to try upon information, or one which court be tried summarily:

Provided that such offence be covered by the evidence in the case and by findings of fact necessary to establish it and does not render the accused person liable to a greater punishment than does any charge in the information

 

3)          Criminal Procedure (Trial upon Information) Ordinance, section 72(1)(b

Power of the court on an appeal

72(1). In determining an appeal the Court of Appeal may-

(b) amend the judgment of the Court of Criminal Assize or district court either as to the description of the offence proved or the article or section of the law applicable and may increase or reduce the punishment and, in general, give such judgment as in its opinion ought to have been given by the court below on the information and evidence before it, or

 

Crim.A. 1/52

 

SHMUEL DEUTSCH

v.

THE ATTORNEY-GENERAL

 

 

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

[April 29, 1954]

Before Agranat J., Goitein J. and Sussman J.

 

 

Criminal Law - Criminal Code Ordinance, 1936, sections 212, 217 - Manslaughter - Causing death through unlawful omission - Culpable negligence - Serious divergence from standard of reasonable care - Recklessness - Sentence - Long period between conviction and appeal.

 

            The effect of the provision in section 217 of the Criminal Code Ordinance, 1936, 1) that "an  unlawful omission is an omission amounting to culpable negligence to discharge a duty (of care)..." is that a person can be convicted of the offence of manslaughter, defined in section 212 2) as "causing the death of another person by an unlawful act or omission", only where it is proved:

(a) that the lack of care on the part of the accused amounted to "gross negligence", that is to say, was a serious divergence from the standard of reasonable care, and

 

(b) that the accused acted as he did out of "recklessness", that is to say, after foreseeing that his conduct was liable to endanger the life or person of another.

 

            Semble, where the negligence of the accused does not amount to gross negligence, but his recklessness expresses itself in indifference to the consequences of his omission, it is possible and also right to convict him of manslaughter as defined in section 212.

           

            The accused, an architect supervising the work of repairing the roofs of abandoned houses in a village, being in need of a certain material for the work, went with a party of workmen to dig that material out of a bank at the roadside. The bank had a portion overhanging a cavity like a roof, and the accused, who was supervising the operation, directed the workmen to dig in the cavity. Two officials of the Public Works Department passed by and warned the accused of the danger of a landfall. Notwithstanding that warning, the digging proceeded. The bank fell in and two workmen were killed.

 

            Held : the accused was guilty of manslaughter.

           

            Held further: though the sentence of six months' imprisonment imposed upon the accused by the District Court was not, in the circumstances, excessive, it would nevertheless not be confirmed on appeal, the offence having been committed in January, 1950, and the appeal having been heard only in January, 1954.

 

 

            Israel cases referred to:

(1)       Cr. A. 125/50 - David Ya'acobovitz v. The Attorney-General (1952). 6 P.D. 514.

(2)       Cr. A. 54/51 - Shaul Freiberg v. The Attorney-General (1951), 5 P.D. 1353.

(3)       C.A. 224/51 - Noah Pritzker and Ore. v. Moshe Friedman (1953), 7 P.D. 674.

(4) Cr. A. 35/52 - Shalom Rotenstreich v. The Attorney-General (1953), 7 P.D. 58.

(5)       Cr. A. 80/53 - Dov Herman v. The Attorney-General (1953), 7 P.D. 1006.

(6)       Cr. A. 153/51 - Ben-Zion Shvili v. The Attorney-General (1952), 6 P.D. 470.

(7)       Cr. A. 268/53 - Sara Sofrin v. The Attorney-General (1954), 8 P.D. 401.

 

English cases referred to:

 

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

(9)       R. v. Bateman (1925), 19 Cr. App. R. 8.

(10)     R. v. Alexander Gordon Bonnyman (1942), 28 Cr. App. R. 131

(11)     Akerele v. The King (1943) A.C. 255.

(12)     Dabholkar v. The King (1948) A.C. 221.

(13)     The Queen v. Senior (1899) 1 Q.B. 283.

(14)     R.v. Henry Burdee (1916), 12 Cr. App. R. 153.

 

American case referred to:

 

(15)     State v. Custer (1929) 67 American Law Reports 909.

 

Caspi for the appellant.

Miriam Ben-Porat, Deputy State Attorney, for the respondent.

 

AGRANAT J. The question that arises in the appeal before us is as follows: what elements must the court find to have been proved before it may convict a person accused of manslaughter under section 212 of the Criminal Code Ordinance, 1936, who has been charged with causing the death of another by an unlawful omission. Section 217 of the Ordinance defines the expression "an unlawful omission" as an omission "amounting to culpable negligence to discharge a duty          whether such omission is or is not accompanied by an intention to cause death or bodily harm". The problem before us therefore is confined to the question of the meaning to be assigned to the expression "culpable negligence to discharge a duty". However, even if the problem is limited in scope. the solution which the English courts have purported to find is far from clear.

 

            The facts of the occurrence were detailed clearly by Judge Many in the court below, and we may therefore state them here shortly: -

           

          The appellant, an architect who has experience in building both in this country and in other countries, was employed in January, 1950, by the Jewish Agency to direct the work of repairing the roofs of abandoned houses in the village of Eshtaol. The appellant was required, in carrying out his task, to bring certain impermeable material known locally as "nari" to the site of the work for the purpose of executing the repairs referred to. On the morning of January 18, 1950, the appellant, therefore, accompanied by eight Yemenite workers and two Arabs who were experts in the repairing of roofs, travelled by truck to a point near Kilometre 31 on the Jerusalem-Tel Aviv highway. The appellant then ordered the workmen to dig the material in question from the side of a hill on the left side of the highway travelling towards Tel Aviv, to gather the material together and to load it on to the truck. The place where the workmen carried out the digging operations is described by the learned Judge as follows:

           

"The road at this point was dug into the mountainand passed between two hillsides which were like steep walls. The wall on the left side of the highway opposite which the truck stood was about three meters high, and was about two and a half meters from the edge of the highway. This wall was not straight but arched: the bottom portion of it was dug curving inwards so that the upper portion formed a kind of roof which jutted outwards for a distance of a meter and a half. This stretched for a distance of ten meters parallel to the highway".

           

            While the workmen were busy digging out the material and loading it onto the truck - for the third time - the witness Elkind, who at that time was the Inspector of Roads in the Public Works Department for the District of Jerusalem, and his assistant, the witness Kalzon, happened to arrive at the spot. They passed under the overhanging rock in which some of the workmen were digging and when they realized the position that had been created as a result of the digging. they warned the appellant of the danger to all those who were there of a possible landfall. In order to stress more strongly the necessity of the immediate removal of the workmen they even told the appellant that when they themselves had to get material of this kind, they did not take it from that place because of the fear of a landfall, but dug it out from a place a few kilometers away. These two witnesses left the place immediately thereafter, and after about twenty minutes a landfall occurred in which two of the workers, Yihye Hazabi and Haim Levi, were killed.

 

            According to the version of the prosecution - which was accepted by the Court in its judgment - the landfall took place at the same spot where the workmen were gathering the material while the witnesses Elkind and Kalzon happened to be there, from which it follows that the appellant paid no attention whatsoever to the warning which he had received.

           

            In the light of the above facts and upon the basis of expert evidence which was led, the learned Judge reached the following conclusions:

           

“(a) that the place where the digging operations were carried out was a dangerous place because of its structure, and that it was made more dangerous by these operations and the manner of their executions so as to constitute a serious danger to the lives and safety of the workmen working there;

 

(b) that the appellant, by virtue of his duty and his presence at the place, was responsible for the safety of the workmen, and that it was his duty to take appropriate safety measures to eliminate all danger to life and limb:

 

(c) that the appellant was obliged, therefore, to erect supports to prevent the overhanging roof from collapsing:

 

(d) that the appellant was in any case obliged after he had been warned of the danger of a landfall, to instruct the workmen to stop working and to leave the place;

 

(e) finally, that the failure to take the safety measures referred to above constituted culpable negligence in the discharge of his duties by the appellant."

 

            The Judge therefore found the appellant guilty of manslaughter under section 212 of the Ordinance in causing the death of the two workmen mentioned, and sentenced him to six months' imprisonment.

           

            In terms of the definition of "an unlawful omission" quoted above from section 217, the liability of the accused flows from the existence of a specific duty imposed upon him, the breach of which on his part caused the death of the victims. Did the accused, then, owe a duty such as this? And, if so, of what did this duty consist? In my opinion the answer to this latter question may be found, in view of the facts of this case as described above, in the provisions of section 231 of the Ordinance which provides as follows: -

           

"It is the duty of every person who... undertakes...to do any lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act; and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to observe or perform that duty".

           

            There is no doubt that this provision applies also to the case before us: first, because the digging out of the material in the place described - having regard to its structure - was in the nature of a dangerous act, and, secondly, because the appellant was obliged - in the course of his duties as director of the work and in view of the fact that the workmen who were employed there were obliged to obey his instructions - to supervise the execution of the work in such a way that those workmen would come to no harm. It follows indeed from the evidence of the experts that a director of building works possessing normal competence would be alive to the danger of a landfall resulting from the carrying out of digging operations at the place in question, and would do one of two things: (a) either see to it that the roof was properly supported or (b) refrain from continuing the digging operations at that place. Since the appellant did neither of these things he did not perform the duty described in section 231. More particularly did he fail to perform this duty since the imminent danger of a landfall had been made clear to him by the warning given by Elkind and Kalzon, and he failed to instruct the workmen to stop their work and leave the place.

 

            Mrs. Ben-Porat, counsel for the respondent, stressed the requirement of "reasonable skill", which, in the definition cited above, is also mentioned as a legal duty - and she submitted that the appellant was guilty of a breach of this duty since he admitted in his evidence that he possessed no experience either in the repair of roofs or in digging operations and the gathering of material. In other words, according to the argument of counsel for the respondent, the very fact that the appellant undertook the duty of supervising the work of repairing roofs and the digging of the material necessary for this task, in itself constitutes negligence, and even culpable negligence. The Judge, however, did not base his conclusions on this evidence of the appellant, and it is doubtful whether he believed the evidence - although it was in the nature of an admission against the accused's interest. In view of the qualifications of the appellant as a building architect, and the period during which he had followed his profession, it is indeed difficult, if not impossible, to accept this evidence as true; it is reasonable to assume that the evidence was given in an effort to find an escape from criminal responsibility by claiming professional ignorance in this field.

           

            Counsel for the appellant submitted that the learned Judge had not weighed the evidence brought by the defence that his client did instruct his workmen, after Elkind and his assistant had left the place, to move a distance of 9 to 10 meters in the direction of Jerusalem, and gather the material in a cavity there, the depth of which was less than that of the area in which they originally worked, and that the landfall actually occurred at this latter place. Had the learned Judge considered this version, Mr. Caspi emphasised, he would perhaps have drawn the conclusion that the appellant - as he stated in evidence - did certainly pay attention to the warning of Elkind and that, in giving his workmen the instruction referred to, he did exercise reasonable care.

           

            Alternatively, counsel for the appellant submitted that the Judge overlooked the evidence of Elkind who said to the appellant that "he must clean the trench as soon as he leaves the place", a fact which shows that even in the opinion of the witness there was no immediate danger.

           

            In my opinion there is no solid foundation for either of these submissions. In the first place the learned Judge held quite clearly that "after the above warning... the accused paid no regard to what was said by the witnesses Elkind and Kalzon - to leave the place - and did not stop the workmen from continuing to gather the material there". It follows from this that the Judge preferred to accept the evidence of those witnesses who testified for the prosecution and who stated clearly that the landfall occurred in the very place where the workmen had been working when those two persons happened to come there - than to believe the version given by the defence. However, even if the version of the defence had been accepted, it would have no practical importance in regard to the final result of the case, in view of the proximity of the two places in which the cavities referred to were found.

            In the second place - and here I deal with the other submission of counsel for the appellant - there is no comparison between the cleaning of the material out of the trench mentioned by Mr. Caspi - which was a matter of a few minutes - and continuing to collect the material which had been dug out of the actual cavity for twenty minutes after the warning had been given. From this it follows that Elkind's request in regard to the cleaning of the trench did not diminish the duty of the appellant to take immediate steps in order to prevent injury to the workmen under his supervision.

            It follows from what I have just said that the appellant did not perform the duty which, in the circumstances of this case, was imposed upon him by section 231, and this omission on his part must therefore be regarded as the cause of the death of the two workmen. This conclusion, however, does not complete our enquiry, for we must still determine whether the omission of the appellant constitutes "culpable negligence" in the performance of the duty referred to.

            It is my own opinion that the legislator did not quite accurately define in section 217 the expression "unlawful omission". It would have been wiser, in my view, to have used the word "neglect" - or some similar word - in place of the word "negligence" so that the definition would have read: "an unlawful omission is an omission amounting to culpable neglect to discharge a duty...". In order to clarify the basis of my opinion - and more particularly to understand fully the intention of the legislature in regard to the requirement of "culpable negligence (or neglect)" - I find it necessary to deal with the meaning of the expression "negligence". This expression is used in three different senses, each of which serves its own purpose. It is necessary, therefore, to ascertain the meaning of the expression "negligence" according to the context in which it is used.

 

            . (a) Experience has shown that in many cases a person causes bodily injury to another by an act or omission because he did not anticipate that his conduct would lead to this result, although an ordinary reasonable man in like circumstances would have anticipated such a result as a likely possibility. This mental state of not anticipating the result of one's conduct is therefore called "negligence", to distinguish it from "mens rea" which includes, as a basic element, just such an anticipation of the future.

           

            I have already dealt elsewhere with this aspect of negligence (see Ya'acobovitz v. The Attorney-General (l) supra). It means therefore the existence of a negative state of affairs: the person who causes the damage does not anticipate the result of his conduct. It is clear that there is no room here for "degrees" or "standards" of negligence. What I wish to say is this: in all these cases there exists only one of two possibilities, either the person who causes the damage has considered the danger to be anticipated from his conduct, or he has not done so. If he has not done so then he is "negligent", but his failure to do so, that is his negligence, cannot be graded in any form since to a negative idea there are no degrees.

           

            There is no doubt that the legislature did not intend to refer to "negligence" in this sense in section 217. The emphasis at the conclusion of the section that an omission shall also be unlawful when it is accompanied by an intention to cause death or bodily harm contradicts the idea that the element of anticipation is to be excluded, for intention necessarily includes this element.

           

            (b) The expression "negligence" is also used to indicate con­duct which expresses itself in failure to observe an objective standard of care which is determined “according to the understanding and conduct of an ordinary reasonable man" (Freiberg v. The Attorney-General (2)). The question when a particular person owes a duty of care (a question with which we are not dealing at this stage) and whether he exercised reasonable care, are two separate and distinct questions, despite the factual connection which sometimes exists between them and which sometimes even obscures their boundaries. This is clear from the eve

nts described in Pritzker v. Friedman (3), in connection with which I made the following comment: -

 

            "The truth is that the respondent in fact took no safety measures when he moved or intended to move the car in reverse, and it is this fact which constitutes the reason... for the injury to the deceased. It is in this sense that there exists the "proximity" between the respondent's lack of care and the fatal result. The fact, however, that the respondent took no safety measures whatsoever and thereby caused the result described does not mean that he owed a duty of care towards the victim...".

           

            The conception of "contributory negligence", which means no more than lack of care on the part of the victim without the existence of any duty of care on his part, may also serve as an example in the case before us.

           

            Negligence in this sense, therefore, is nothing more than lack of care and is certainly reasonably susceptible of gradation. That is to say, when the discussion relates to a deviation from an objective norm of care the possibility exists - according to the circumstances of the case - of a serious deviation, an ordinary deviation, a negligible deviation and so forth (see Charlesworth on Negligence, second edition, p. 5). 'Gross negligence" says Glanville Williams (in his book "Criminal Law - The General Part", p. 88) means that the conduct of a person who causes harm has deviated widely from that of the reasonable man".

           

            It is obvious that the expression 'negligence" in this sense has no place in the definition in section 217. “The expression negligence - (read: lack of care) - in the discharge of a duty" in respect of one of the types of duty spoken of in section 231, since such duty in itself demands conduct which reaches a certain standard of care, would be tautologous.

           

            (c) There is also the civil wrong of negligence in section 50 of the Civil Wrongs Ordinance, 1944. This tort, as is well-known, contains three elements:

           

 (1) a duty of care (2) breach of this duty (3) the causing of damage. It is clear that the second of these elements is identical with aspect (b) of negligence mentioned above. The civil wrong, however, which is aspect (c) above, is a conception embracing more elements for it also demands the existence of the first and third elements referred to. A person can be careless without committing a breach of any duty and also without causing damage to anyone. As I have already shown, however, a person cannot be liable for the payment of damages for negligence unless a duty of care was imposed upon him and he has caused damage to another.

 

            This aspect - as well as the second aspect mentioned - differs from the first aspect in that it requires the court to conduct a purely objective investigation, that is to say, without ascertaining whether the defendant paid attention to the danger which could be anticipated from his conduct or not. Williams writes (ibid. page 82): "In the law of tort negligence has an objective meaning. It signifies a failure to reach the objective standard of the reasonable man, and does not involve any enquiry into the mentality of the defendant". He adds: "the same rule prevails in criminal law, in those spheres where negligence is recognised at all".

           

            It is for this reason that it was held by Cheshin J. - who was of opinion that in enacting section 218 of the Ordinance the legislature merely introduced into the area of the criminal law the principles of negligence in English Civil Law - that for the purposes of the misdemeanour created by that section, it is only necessary to prove (a) the existence of a duty of care on the part of the accused towards his victim; (b) breach of that duty; (c) and as a result of that breach, the causing of the death of the victim (see Rotenstreich v. The Attorney-General (4)).

           

            This aspect too - including as it does the element of conduct amounting to a lack of reasonable care (the second aspect) - does not explain the use of the expression "negligence" in association with the words "negligence to discharge a duty" in section 217, for again it cannot be said that a man was negligent in the discharge of a duty not to be negligent.

           

            It is for these reasons that I am of the opinion that the expression "neglect" would be more appropriate in the context referred to. I think that this is so not only in regard to the failure to discharge one of the duties of care mentioned in section 231 - and also section 232 - but also where it is intended to refer to the failure to discharge any of the duties mentioned in the remaining sections of Chapter XXIV of the Ordinance to which the legislature has attributed a definite specific content without reference to the standard of an ordinary reasonable man.

 

            And if it be asked why the legislator used the expression "negligence" - of all expressions - in section 217, I would make bold to reply that he copied what seems to me to be a linguistic error in Stephen's Digest of the Criminal Law, in which the offence of man­slaughter with which we are dealing is defined as "death caused by an omission amounting to culpable negligence to discharge a duty of care...", (ibid., section 268, eighth edition). Proof of this is furnished by the fact that the learned author was more careful in the selection of his language when he dealt in detail with the offence and employs the expression "culpable neglect to perform a duty of care" (ibid. section 291), and that is also the case where he deals with failure to discharge one of the other types of duties described in chapter XXIV of our Ordinance (see ibid. section 294). If I am correct in my analysis up to this point of the definition in section 217, it is clear that the word culpable in that section should be descriptive of the term "neglect" instead of the term "negligence", This is Important for, in addition to ascertaining whether there exist the elements described in section 231 - that is to say, whether the accused failed to discharge the duty of care there mentioned, and thereby caused the death of the victim - the legislature imposed the introduction of an additional element, namely, that the conduct forming the subject of the charge of manslaughter must be culpable, and the meaning of the expression culpable may be different depending upon whether it relates to neglect or to negligence, as we shall see later. It follows that the problem which we have to solve may now be formulated as follows: what was the intention of the legislature in requiring that neglect to discharge the duty of care referred to shall be "culpable neglect".

           

            We shall derive no assistance in solving this question from definitions in a dictionary. According to the dictionary there are two principal meanings of the word "culpable", one of which is "criminal' and the other of which is "blameworthy". Neither of these meanings throws any light on the question before us, as regards the first because the adjective "criminal' is of no assistance in the de­finition of criminal offence, and as to the second, because its content is too wide and insufficiently specific. I am compelled, therefore, to refer to English authorities, where we meet the difficulty that the English courts, in dealing with manslaughter of the kind now under consideration, are undecided, emphasising in some cases the elements of "gross negligence" and in others the element of "recklessness". I have studied these judgments again and again and it is clear to me that the English judges are unanimous today in requiring conduct which amounts to "gross negligence" (that is to say, a serious divergence from ordinary careful conduct), and that they also tend to demand at least some degree of “recklessness”, subject to the one reservation that where recklessness in the sense of "indifference" is found to exist, they are satisfied with conduct which only amounts to ordinary negligence. It is necessary, however, to be careful when dealing with the principles laid down in these judgments. In the first place, the English courts were not bound by a statutory definition of manslaughter and certainly not by a definition which includes the adjective "culpable". On the contrary, they have in recent times desisted from using this expression altogether in this context. In the second place, these judgments were given under the English Criminal Law, which contained no offence parallel to that introduced by the local legislature in section 218. Bearing this reservation in mind, let me now consider the more important of these judgments among those I have mentioned, two of which (the cases of Andrews v. Director of Public Prosecutions (8) and R. v. Bateman (9)) were considered at length by my colleagues Cheshin and Silberg JJ., in the case of Rotenstreich v. Attorney-General (4) in connection with section 218, and by my colleague Landau J., in the case of Herman (5) in connection with section 243.

 

            (a) In Andrew's case (8) Lord Atkin said:

           

"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".

           

            It is clear that the meaning of negligence in this context is careless conduct (the second aspect). It follows, therefore, that it is necessary to prove the existence of "gross negligence", that is to say, a serious divergence from the standard of conduct of a reasonable man.

           

But Lord Atkin went on to say that probably of all the epithets that can be applied "reckless" most nearly covers the case, since "it is difficult to visualise a case of death caused by 'reckless' driving in the connotation of that term in ordinary speech which would not justify a conviction of manslaughter". Nevertheless he found that the word "reckless" was not sufficiently all-embracing since it merely suggests an indifference to risk whereas "the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction". The state of mind, however, described in the second example mentioned by Lord Atkin is also included in the expression recklessness, as is pointed out by Dean in his article on Manslaughter and Dangerous Driving (see Law Quarterly Review, vol. 53, p. 382). A similar opinion was expressed by me in Ya'acobovitz v. The Attorney General (1) at p. 545. It follows from the English authority quoted that negligence in the sense of lack of reasonable care, when associated with recklessness in a form indicating indifference to the consequences, is sufficient to lead to a conviction for manslaughter. On the other hand, where gross negligence exists it is necessary nevertheless that the accused should have foreseen the danger to be anticipated from his conduct.

 

            (b) R. v. Bateman (9).

           

            In this judgment, which still remains the most searching and valuable of all the judgments dealing with the problem now before us, Lord Hewart C. J. said the following (at page 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 that 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".

           

            In this passage the expression "negligence" is used in accordance with the third aspect described above, and there is no clear test in the passage cited which tells us how it is to be determined whether the conduct of the accused amounts to manslaughter, as distinguished from civil negligence. The learned Lord Chief Justice, in continuing his judgment immediately after the passage cited where he employs the expression "negligence" according to the second aspect mentioned above, touches on this subject. Thus he says - at page 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".

 

            Here, therefore, there is a clear requirement that the conduct should amount to gross negligence, that is to say, to a serious divergence from the norm of care exercised by a reasonable man. It is clear, however, that the learned Lord Chief Justice was not satisfied with this requirement alone. for he added: -

           

            "There must be mens rea" (ibid.) thus :

           

            "...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 the 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..." (ibid.).

 

And again at page 16: -

 

            "...The issue they (the jury) have to try is not negligence or no negligence, but felony or no felony".

           

And to conclude: -

 

            "It is, in a sense, a question of degree, and it is for the jury to draw the line, but there is a difference in kind between the negligence which gives the right to compensation and the negligence which is a crime". (ibid.)

 

            If we carefully examine the contents of each of these four passages, do we not find an unambiguous direction that before a man is convicted of manslaughter the existence of "recklessness" on his part and not merely gross negligence must be established? The first passage speaks for itself. The second passage emphasises the necessity of the negligence showing "disregard for the life and safety of others". This means, in the nature of things, that the accused must show (not that the negligence must show) a disregard of the danger to be anticipated for others from his conduct. The third passage indicates the seriousness of the offence of manslaughter, which hints, in my opinion, at the necessity for the existence of a certain degree of mens rea before the accused can be convicted, for this passes like a golden thread through almost all serious offences in English law. And, in conclusion, as was emphasised by Silberg J. in Rotenstreich v. The Attorney-General (4) (at page 75), the fourth passage shows not only the difference in degree between civil negligence and the crime of manslaughter but also the qualitative difference, the meaning of which again is in a case of manslaughter the existence of recklessness on the part of the accused.

 

            (c) R. v. Bonnyman (10).

           

            This judgment was delivered in 1942, the court following the judgments in the two criminal appeals cited above, albeit with some confusion between the two tests, the one of degree and the qualitative test referred to. The judge in the trial court directed the jury that before they convict the accused they must find conduct amounting to "reckless negligence". In holding that this direction was well founded, Lord Caldecote said: -

           

"There one finds the word "reckless" which has been now approved by the House of Lords as probably in all the circumstances the best epithet to use to help a jury to understand that a special or a high degree of negligence must be found by them before they can return a verdict of manslaughter" (ibid. pages 135-136).

           

            The Chief Justice goes on to clarify his opinion by two examples, the first - mentioned by Cheshin J. in Shvili v. The Attorney-General (6) - is the example of a motor driver who, travelling at an excessive speed and turning a corner in too wide a radius, crossed a country road on which he had no right to drive, and came upon what he did not expect to meet - another vehicle coming towards him. In the second example a motorist was warned of the presence of children in the road, but nevertheless drove at forty miles per hour because he was in a hurry and killed one of them. The learned Lord Chief Justice was of the opinion that the first driver should not be convicted of manslaughter while he thought that the second driver should be convicted of that offence.

 

            It is my opinion that the justification for these conclusions lies in the first that in the circumstances which existed in both of them the element of gross negligence was present, but while in the second example such negligence was accompanied by recklessness, that element was absent in the first example cited.

           

            (d) Akerele v. The King (11).

           

            In this case the Privy Council quashed the conviction of a doctor who had caused the death of ten children all of whom were victims of an epidemic which broke out in the district in which they lived. The children had died after taking medicine which the doctor had prepared. It appeared that the accused had dissolved an excessive quantity of powder because his attention had been diverted, with the result that the medicine which he had prepared was too concentrated. The Privy Council quashed the conviction holding, on the one hand, that the trial judge had not made it clear that only one act was of importance - the act of preparing the solution - which was done when the accused's attention was diverted (the opposite of recklessness), and on the other hand, the judge had not considered the necessity of finding the existence of gross negligence (p. 264).

           

            (e) It is also appropriate to mention the important modern judgment of Judge Burch in State v. Custer (15) in which the court considered the statutory offence of manslaughter, one of the elements of which is "culpable negligence". After reaching the conclusion that the offence is identical with that of manslaughter in the Common Law of England, and after reviewing the English decisions and literature on this subject, Judge Burch held that the prosecution was obliged to establish (a) conduct amounting to lack of reasonable care; (b) recklessness in the sense of "disregard of or indifference to the consequences in circumstances involving danger to the life or safety of others, although without the intention of causing damage" (page 920).

 

            (f) These are the judicial pronouncements on this topic. Among contemporary writers however on both sides of the Atlantic, there is unanimity of opinion that a man should not be convicted of the crime of manslaughter unless there is mens rea in the sense again of recklessness (see Turner, Modern Approach to the Criminal Law, at pages 224-242, the principal portions of which have been copied into the latests edition of Russell, at pages 640-643, and Kenny, at pages 139-146; Williams, at pages 88-94; and Jerome Hall, General Principles of Criminal Law - chapter on "Recklessness and Negligence", at pages 215 ff.).

 

I shall now attempt to lay down the principle which emerges from our own law in the light of the authorities I have cited.

           

            (l) It seems to me that the expression "culpable" - where it is used as an adjective to describe the noun "neglect", and where the question deals with neglect to perform one of the duties of care stated in section 231 (and 232) - embraces and may be interpreted to mean the requirements of both gross negligence and recklessness. It is true that this will not be so if we apply the adjective in question to the word "negligence" in its second meaning, since the only meaning which can then be given to the expression "culpable neglig­ence" - again on the assumption that negligence means only lack of care - is: lack of care in a high degree, that is to say, gross negligence. As proof of this use of the word "culpable negligence" I point to Stephen (section 291, second paragraph), who says that "the question of what amount of negligence can be called culpable is one of degree... depending on the circumstances of each particular case". And this was also the use to which these words were put by the Mandatory Legislature when it laid down, in section 218 of the Ordinance, the element of lack of care which does not amount to “culpable negligence”. This follows clearly from the interpretation of this element by Cheshin J. in Rotenstreich v. The Attorney-General (4), where he said (at page 84): -

           

“In order to establish a charge of manslaughter by negligence in English law, it must be proved that the accused acted with negligence of an extremely high degree,with culpable negligence, .. .which takes no account of the life of man and pays no regard to the lives of the public,and is like a felony. This felony has its place in the law of this country within the offence stated in section 212 of the Criminal Code Ordinance. But there is a less serious form of negligence which does not amount to a felony since it is of a lesser degree. English law does not regard negligence of this kind as an offence at all and provides that it gives rise to civil liability alone, to the payment of damages. As against this the legislature, in enacting the Criminal Code Ordinance, 1936, regarded even a low degree of negligence such as this as a criminal offence -to use the language of the Ordinance: “want of precaution not amounting to culpable negligence."

           

            As I have said, the enquiry as to the existence of the element stated in section 218 is an objective enquiry. The use of the words "culpable negligence" in that section, therefore, is correct, since their meaning is confined to lack of care of a high degree, that is to say, the minimum requirement demanded by the legislature in this section is conduct which will amount to lack of reasonable care. But the word "culpable" - when it is employed as an adjective to describe the expression "neglect" in the definition in section 217 - so that the neglect spoken of is culpable neglect in the performance of one of the duties of care mentioned - is susceptible of a wider interpretation so as to embrace both the requirement of negligence of a high degree and also the requirement of recklessness.

           

2. In the light of the dicta of Cheshin J. in Rotenstreich's case (4) and the English authorities which I have cited I accept - subject to one reservation which I shall deal with later - the requirement that in order to secure a conviction for manslaughter of the type here discussed, the prosecution must prove lack of care of a high degree, that is to say, "gross negligence".

 

3. The proof of the existence of this element is not sufficient, for the prosecution must also prove "recklessness" on the part of the accused person, that is to say, that he was aware of the danger to the lives or safety of others to be anticipated from his conduct. In reaching this conclusion I do not rely only upon the opinions of the learned judges and writers I have mentioned nor upon the ground that this discussion relates to an offence which carries with it the maximum penalty of life imprisonment so that the basic requirement of the criminal law, namely, mens rea, cannot be dispensed with. I also rely upon the ground that the expression "gross negligence" or "lack of care of a high degree" is not an exact expression, and its application depends, as is conceded by all, upon the particular circumstances of each case. What I wish to say is that in many cases the question of whether the conduct of the accused amounts to a serious divergence from the norm of reasonable care will be easily answered, but there is no doubt that in other cases - and there are many - the reply to the question of whether the conduct considered falls on one or other side of the dividing line between "ordinary lack of care" and "gross lack of care" will change according to the individual outlook of each particular judge whose duty it is to assess the circumstances of the case.

 

            And that is not all. In Herman v. The Attorney-General (5), it was held by Landau J. that the degree of negligence required to justify a conviction under section 2431) must at least be greater than that which is required in a civil claim - that is to say, than that required under section 218.

           

            In Dabholkar v. The King (12) at pages 224-225, it was held more specifically by the Privy Council in considering a statutory provision identical in content with section 243, that that provision demands "a higher degree (of negligence) than the negligence which gives rise to a claim for compensation in a civil court, it is not of so high a degree as that which is necessary to constitute the offence of manslaughter." It follows that there are at least three different offences each of which requires its own minimum degree of negligence, so that the enquiry whether the conduct of an accused charged with the offence of manslaughter under section 212 reached the high degree required by that section or reached one of the other degrees of negligence, becomes even more complicated. This being the case, it is not possible that the legislature intended to hold an accused such as this responsible according to the quantitative test alone, and did not intend also to include the qualitative test, that is, the test of the existence of mans rea in the sense of recklessness.

            Let me consider the following example. A is engaged in dynamiting rock in order to prepare a site for building. The site borders upon a road used by pedestrians. A few moments before the explosion A - in accordance with his experience in the past-warned those who happened to be in the vicinity to move away from the site to a distance of 50 meters, although the rules of care in such circumstances would demand a distance of 80 meters. As a result of the explosion B, who stood in the area between 50 and 80 meters from the site, was killed. Did A's negligence reach a high degree, or an ordinary degree, or somewhere between the two? Should he be convicted under section 212, or under section 218, or is the matter appropriate for the application of section 243(h)? If he is charged with manslaughter no one can say beforehand how the judge will decide the question whether the requirement of "gross negligence" has been fulfilled. Can we in this case dispense with the necessity of the proof of recklessness on A's part in order to lay the foundation for his conviction of so serious an offence?

           

4. What degree of recklessness is required to satisfy the qualitative test? My reply would be that it is not essential that the accused should foresee the actual fatal result. It is sufficient - in regard to causing death by breach of one of the duties of care set out in section 231 - that the accused foresaw as a likely possibility that his conduct would cause actual bodily harm. In other words, it is sufficient if the accused were aware of the fact that his act might involve danger to life or health. In short, if the accused showed disregard - to borrow the language of the Lord Chief Justice in R. v. Baseman (9) - for the safety of the individual, and not necessarily for his life, the necessary degree of recklessness is present.

 

5. The result is that the prosecution must establish both these requirements: (a) the existence of recklessness within the meaning discussed above and (b) gross negligence. I must add here the reservation of which I hinted in my previous remarks, and that is that where the negligence of the accused does not amount to gross negligence but his recklessness expresses itself in indifference to the consequences. it is possible and also right to convict him of manslaughter under section 212. This, it would seem, is the result of the judgments in England and America. However, as there is no need in the case before us to decide this question I leave it open.

 

6. Mrs. Ben-Porath, who - if I understood her arguments correctly- submitted that the element of mens rea was not essential to constitute the offence of manslaughter of the type with which we are concerned, relied upon the cases of Senior (13), and Burdee (14). The accused in each of these cases was convicted of manslaughter despite the absence of recklessness on his part. I shall not give a detailed analysis of these judgments. I would however point out (i) that in the first case cited the fatal consequence was caused by the breach of a duty of the type stated in section 229, that is to say, a type of duty with which we are not here concerned; (ii) that the second case cited dealt with the guilt of a person who took it upon himself to cure the victim by means which were devoid of any scientific basis and without ever having studied medicine, and of him it may be said (as was said in Bateman's case (9) supra, at page 13) that the necessary degree of mens rea was proved once it was held that he knew that he had no professional skill; (iii) that the reasoning in both these cases has been the subject of unfavourable criticism (see Glanville Williams, ibid., pages 90, 93).

 

            In the result I summarise the principle as follows: The conviction of a person of the offence of manslaughter because of an omission which expresses itself in the breach of one of the duties of care mentioned in section 231 (or a similar duty) is only possible where it is proved (a) that the lack of care on the part of the accused amounted to "gross negligence" (that is to say, a serious divergence from the standard of reasonable care); (b) that the accused acted as he did out of "recklessness", that is to say, after foreseeing that his conduct was liable to endanger the life or person of another; (c) it is also possible that if the recklessness expresses itself in an approach of indifference there may be room to convict the accused of manslaughter even if the degree of recklessness on his part amounted only to lack of reasonable care.

 

            Applying this principle to the facts before us there is no doubt that the conviction of the appellant of the offence attributed to him is correct. In the first place there is no escape from the conclusion that after having received the warning which was given to him the appellant knew of the Iikelihoood that a landfall would take place, and of the danger to the lives of his workmen that was to be anticipated. In the second place, the finding of the learned Judge that the appellant did not stop work in the opening in the rock even after he had been warned and did not instruct the workmen to leave the place, is in effect a finding of "gross negligence". This finding remains valid even if we assume the correctness of the version of the defence relating to the removal of the workmen from the first opening in the rock to the second.

           

            In his argument before us Mr. Caspi emphasised the statement of Lord Porter in Akerele v. The King (11) in regard to "the care which should be taken before imputing criminal negligence to a professional man acting in the course of his profession". In my opinion this statement merely means that the demands upon a professional man should not be exaggerated, and that he should not be called upon to show the same brilliance as is shown by those who are outstanding in his profession. If, however, his conduct falls below the accepted standard - he then, as I have said, commits a breach of the duty contained in section 231. In our case, indeed, the evidence of the defence witness Axelrod was clear when he said: "In the fulfilment of his duty the accused should have seen to it that there existed safe conditions of work for the workmen under his supervision. There was no necessity for special technical experience in order to be aware of the danger that lurked in the place where the accident happened".

           

            On the basis of what I have said, it is my opinion that the appeal should be dismissed in regard to both convictions.

           

GOITEIN J. I agree.

 

SUSSMAN J. I agree.

 

AGRANAT J. It is decided therefore to dismiss the appeal on both convictions. In regard to the appeal against the sentence we do not think that the punishment imposed by the Judge - six months' imprisonment - was excessive. It is nevertheless difficult for us to confirm the sentence having regard to the fact that the occurrence which was the subject of the conviction took place in January, 1950; that the trial and conviction of the appellant took place in December 1951; and that the appeal was heard in this court only in January. 1954 (since the file was received by this court after many reminders only in September, 1953). The result is that the convictions and sentence have been hanging over the head of the appellant for over four years. It seems to us that in these special circumstances it would be appropriate to impose a heavy fine upon the appellant instead of the sentence of imprisonment. The difficulty about that is that our hands are tied by the law which limits the maximum fine in respect of each conviction to an amount of IL. 200.- (see Sofrin v. The Attorney-General (7)). Despite this unsatisfactory state of affairs, however, it is our opinion that it would not be right to send the appellant to prison, a solution which, in spite of the serious blow that that would be to the appellant, would, today in any event, not achieve any punitive purpose.

 

            We have decided therefore - not that this decision should be regarded in any sense as a precedent in other cases - to vary the sentence and to impose upon the appellant a fine of IL. 400.- or. in default of payment, imprisonment for a period of three months.

           

Appeal against conviction dismissed but sentence varied.

Judgment given on April 29, 1954,

 

1) Criminal Code Ordinance, 1936, section 217:

Unlawful omission      217. An unlawful omission is an omission amounting to culpable negligence to discharge a duty, whether such omission is or is not accompanied by an intention to cause death or bodily harm.

2) Criminal Code Ordinance, 1936, section 212:

Manslaughter.            212. Subject to the provisions of section 214 3) of this Code, any person who by an unlawful act or omission causes the death of another person is guilty of a felony. Such felony is termed manslaughter.

3) Criminal Code Ordinance, 1936, section 214:

Murder.                     214. any person who: -

(a) by any unlawful act or omission wilfully causes the death of his father or mother or grandfather or grandmother, or

(b) with premeditation causes the death of any person,

or

(c) wilfully causes the death of any person in preparing for or to facilitate the commission of an offence or in the commision of an offence, or

(d) where an offense has been committed causes the death of any person in order to secure the escape or avoidance of punishment in connection with such offence of himself or of any other person associated with him as a principal or an accessory in the commission of such offence, is guilty of a felony. Such felony is termed murder.

1) Criminal Code Ordinance, 1936, section 243:

Reckless and negligent acts           243. Any person who in a manner so rash or negligent: as to endanger human life or to be likely to cause harm to any other person:-

(a) drives a vehicle or rides on a public way; or

(b) navigates, or takes part in the navigation or working of, any vessel; or

(c) does any act with fire or any combustible matter or omits to take precautions against any probable danger from any animal in his possession; or

ession; or

(d) omits to take precautions against any probable danger from any animal in his possession; or

(e) gives medical or surgical treatment to any person whom he has undertaken to treat; or

(f) dispenses, supplies, sells, administers or gives away, any medicine or poisonous or dangerous matter; or

(g) does any act with respect to, or omits to take proper precautions against any probable danger from, any machinery of which he is solely or partly in charge ; or

(h) does any act with respect to, or omits to take proper precautions against any probable danger from, any explosive in his possession; is guilty of a misdemeanour.

 

 

 

 

 

 

 

I concur with the ruling of my learned colleague, Justice Or.

Justice M. Cheshin

I concur with the ruling of my colleague, Justice Or. However, I must confess that in circumstances such as ours, I was attracted by the doctrine of evaluating the chances of the existence of a causal connection (as opposed to the doctrine of balance of probability), on which my colleague, Justice Strasberg-Cohen, based her opinion. “In circumstances such as ours” means in circumstances in which the injured person – the plaintiff – due (also) to the defendant’s actions and omissions, finds it difficult to prove a causal connection between the defendant’s actions and omissions and the injury incurred (by the plaintiff). Thus, for instance, one could argue that in circumstances such as ours – to which I confine my remarks – the justice of the principle of distributing and spreading the damage is preferable to the justice of the principle of “all or nothing.” This was also the case in the past when, in cases of contributory negligence, the principle of division of liability between the tortfeasor and victim replaced the principle of full exemption or full liability. It could therefore be argued that the same rule should apply in our case. The same rule is also applied regarding the division of liability between joint tortfeasors. Concededly, with respect to a causal connection between action or omission and damage caused, these two [aforementioned – ed.] cases are not identical to the case before us. Even so, it would seem that the underlying principle of distributing and spreading the damage should also find expression in circumstances such as ours. Since I concur with the opinion of my colleague, Justice Or, I have the good fortune of not having to decide the question. Its time will come.

Justice I. Englard

I concur with the judgment of my honorable colleague, Justice Or.

It was therefore decided by majority opinion in accordance with the opinion of Justice Or.

August 29, 1999.

 

 

CA 1617/04

1. Chim-Nir Flight Services Ltd.

2. Nissim Ben-Ezra

3. Yoav Ben-Zvi

4. Yosef Barel

5. Dov Grodman

6. Shlomo Haber

7. Avraham Werber

8. Ilan Sela

9. Aryeh Etzioni

10. Dov Peleg

11. Baruch Rothman

12. David Shavit

13. Yehoshua Shamrat

14. Gidon Shatil

v

The Tel Aviv Stock Exchange Ltd.

 

The Supreme Court sitting as the Court of Civil Appeals

[21 February 2007]

Before Deputy President E. Rivlin, Justices E. Arbel, D. Cheshin

 

Appeal of the decision of the Tel Aviv District Court handed down on December 22, 2003, in TA 2367/00 by Judge Dr. O. Modrik.

 

Legislation cited:

Securities Law, 5728-1968, s. 46

 

Israeli Supreme Court cases cited:

CA 4275/94 Tel Aviv Stock Exchange Ltd. v. A.T. Management of Torah Literature Database Ltd. [1997] IsrSC 50(5) 485.
CA 1094/95 Tel Aviv Stock Exchange Ltd. v. Chim-Nir Flight Services Ltd. [1997] IsrSC 55(1) 634.
CA 467/04 Yetach v. Mifal HaPayis (2005) (unreported).
HCJ 555/77 Babchuk v. Tel Aviv Stock Exchange [1978] IsrSC 32(2) 377.
CA 1326/91 Tel Aviv Stock Exchange Ltd. v. Marcus [1992] IsrSC 46(2) 441.
CA 6296/00 Kibbutz Malkiya v. State of Israel [2004] IsrSC 59(1) 16.
CA 145/80 Vaknin v. Beit Shemesh Local Council [1982] IsrSC 37(1) 13.
CA 2061/90 Marzeli v. State of Israel - the Ministry of Education and Culture  [1993] IsrSC 47(1) 802.
CA 5586/03 Freemont v. A. (2007) (unreported).
CA 10083/04 Gooder v. Modi’im Local Council (2005) (unreported).
 CA 2625/02 Nahum v. Dornbaum [2004] IsrSC 58(3) 386.
CA 10078/03 Shatil v. State of Israel (2007) (unreported).
CA 915/91 State of Israel v. Levy [1994] IsrSC 48(3) 45.
CA 243/83 Municipality of Jerusalem v. Gordon [1985] IsrSC 39(1) 113, 134-136.
CA 2906/01 Municipality of Haifa v. Menora Insurance Ltd. (2006) (unreported).
CA 1678/01 State of Israel v. Weiss [2004] IsrSC 58(5) 167.
CA 1068/05 Municipality of Jerusalem v. Maimoni (2006) (unreported).
HCJ 64/91 Khilef v. Israel Police [1993] IsrSC 47(5) 563.
CA 653/97 Baruch and Tzipora Center Ltd. v. Municipality of Tel Aviv-Jaffa [1999] IsrSC 53(5) 817.
CA 3889/00 Lerner v. State of Israel [2002] IsrSC 56(4) 304.
CA 862/80 Municipality of Netanya v. Zohar [1983] IsrSC 37(3) 757.
CA 1639/01 Kibbutz Maayan Tzvi v. Karishov [2004] IsrSC 58(5) 215.
CA 8526/96 State of Israel v. A. (2005) (unreported).
CA 429/82 State of Israel v. Suhan [1988] IsrSC 42(3) 733.
CA 196/90 Yirmiyahu Eini Construction Co. Ltd. v. Krayot Committee for Local Planning and Building [1993] IsrSC 47(2) 111.
CA 5604/94 Chemed v. State of Israel [2004] IsrSC 58(2) 498.
CA 3108/91 Rabie v. Veigel [1993] IsrSC 47(2) 497.
CA 6970/99 Abu Samara v. State of Israel [2002] IsrSC 56(6) 185.
CA 1081/00 Avnel Distribution Co. Ltd. v. State of Israel [2005] IsrSC 59(5) 193.
CA 4707/90 Mayorkas v. State of Israel –Ministry of Health (1991) (unreported).
CA 491/73 Gedolei Hacholeh Ltd. v. Machruz [1975] IsrSC 29(2) 31.
HCJ 5933/98 Israeli Documentary Filmmakers Forum v. President of the State [2000] IsrSC 54(3) 496.
HCJ 8850/02 Pastinger v. Minister of Justice [2004] IsrSC 58(2) 696.
CA 735/75 Roitman v. Aderet [1976] IsrSC 30(3) 75.
CA 732/80 Arens v. Beit El – Zichron Yaakov [1984] IsrSC 38(2) 645.
LCA 1565/95 S’char V’Sherutei Yam Ltd. v. Shalom Weinstein Co. Ltd. (2000) (unreported).
LCA 2422/00 Ariel Electrical Engineering Traffic Lights and Maintenance v. Municipality of Bat Yam [2002] IsrSC 56(4) 612.
MCApp 2236/06 Hamami v. Ohayon (2006) (unreported).
HCJ 731/86 Micro Daf v. Israel Electric Co. [1987] IsrSC 41(2) 463.
CA 294/91 Kehillat Yerushalayim Jewish Burial Society v. Kestenbaum [1992] IsrSC 46(2) 464.
CA 3414/93 On v. Diamond Exchange Enterprises (1965) Ltd. [1995] IsrSC 49(3) 196.
LCA 1784/98 Amidar v. Manada  [1999] IsrSC 53(4) 315.
CA 4980/01 Adv. Shalom Cohen (Official Receiver) v. Glam  [2004] IsrSC 58(5) 625.

 

For the appellants – A. Weinroth, O. Bar, D. Zimmerman

For the respondent – Y. Elhawi

 

JUDGMENT

 

Justice E. Arbel

In this appeal of the judgment of the Tel Aviv-Jaffa District Court (Judge Dr. O. Modrik), the Court is asked to rule that the respondent, the Tel Aviv Stock Exchange Ltd. (hereinafter: "the TASE"), is liable for the damages caused to the appellants as a result of the allegedly negligent decisions that it made during the process of the [first] appellant's share offering.

The facts

Appellant 1, Chim-Nir Flight Services Ltd. (hereinafter: “the Company”) is a public company founded in 1991 which provides aviation services. At the beginning of June 1994, the Company sought to offer its shares to the public on the TASE. It submitted a draft prospectus to the Israel Securities Authority and the TASE, in accordance with its obligations under s. 15 of the Securities Law, 5728-1968 (hereinafter: "the Securities Law"). The TASE and the Israel Securities Authority approved the draft in principle, and the Company planned to publish the prospectus on November 30, 1994. It is also relevant to mention that the Company claims that it was of material significance that the share offering be implemented by the end of 1995 in order to qualify for a particular tax benefit. Since the financial markets were in crisis at that time, the Company decided, in consultation with its advisors and the underwriters of the offering, to add a statement to the prospectus to the effect that within no less than one month, and no more than three months from the date on which the shares were listed for trading, the Company’s shareholders would offer to purchase sixty percent of the issued shares from the public at a minimum price proposed at the time of the offering (hereinafter: "the repurchase offer").  
The TASE objected to the inclusion of the repurchase offer in the prospectus, on the grounds that its implementation was liable to reduce the public’s holding of the Company’s shares to below the minimum level specified in reg. 73c of the TASE Regulations (hereinafter: "the Regulations") for public holdings in a new company seeking to list shares for trading on the TASE. This was in accordance with the provisions of s. 46(a)(2) of the Securities Law which states, inter alia, that the TASE may specify, in the Regulations, “the minimum ratio that will be held by the public immediately subsequent to the listing” (hereinafter: "the listing rules"). The TASE therefore decided not to approve publication of the prospectus as long as it contained the repurchase offer. The Company appealed this decision to the Tel Aviv-Jaffa District Court (MA 10/95), which granted the appeal. The court ordered that the inclusion of the repurchase offer in the Company’s prospectus be approved, providing that it stated that the offer would not be implemented until at least two months had elapsed from the date that the shares were listed for trading. The TASE appealed the judgment to this court (in CA 1094/95), which, at the request of the TASE, ordered a stay of execution of the District Court’s decision until a ruling on the appeal would be handed down.

As a result, in light of time constraints that the Company claims it faced, the Company decided to change the prospectus and omit the repurchase offer (hereinafter: "the amended prospectus"). The amended prospectus was approved and the Company’s offering was issued on June 8, 1995.

This court (Justices E. Goldberg, T. Or, and Y. Zamir) dismissed the appeal of the TASE, ruling that the TASE chose to include in its Regulations listing rules that applied at the time of listing the shares for trading, as distinct from rules that would also apply when the shares were being traded on the TASE (hereinafter: "maintenance rules"). Accordingly, it was determined that the phrase “immediately subsequent to the listing” should be interpreted to refer to the time at which the shares reach the purchasers. Therefore, in the absence of maintenance rules or a directive prohibiting the inclusion of a repurchase offer in the prospectus, it was found that the Company had complied with the listing rules. The court also ruled that, under the circumstances, the repurchase offer could not be regarded as detrimental to the regular and proper management of the TASE in any way, since it was based on logical reasoning. Concluding, the court ruled that the TASE had gone too far in its interpretation of the listing rules and that its decision not to approve publication of the prospectus which included the repurchase offer (hereinafter: "the decision of non-approval") did not have a sufficient factual basis. It found that the TASE had not showed foundation for its concern that the Company was attempting to bypass the listing rules through the repurchase offer, or that damage would indeed be caused to trading as a result of this offer (hereinafter: "the judgment in the previous proceeding").

Following the denial of the appeal, the TASE acted to amend the listing rules so that in cases in which a prospectus contains a notice regarding any kind of option or right which the interested party has regarding the offered shares, these shares will not be counted among the quota of shares being offered to the public. The amendment process lasted about two years, and about three years later the TASE added maintenance rules to the Regulations. These rules determined, inter alia, that a decrease in the public’s holdings to less than 7.5% of the issued capital would result in the delisting of the share from trade.

As a result of the judgment in the previous proceeding, the Company, together with thirteen of its shareholders (hereinafter: the appellants) filed suit against the TASE, claiming that as a result of its unreasonable decisions – which led to the deferral of the offering and the need to issue it without the repurchase offer – they had incurred damages amounting to NIS 17 million.

The judgment of the District Court

The lower court divided its deliberations into two questions: that of liability and that of damages. After hearing the parties’ arguments regarding the question of liability, it found that the TASE had not been negligent in making the decisions that led to the delay of the offering, i.e. the decision of non-approval and the decision to apply to the Supreme Court for stay of execution of the District Court’s judgment until after the ruling on the appeal (hereinafter: "the application for stay of execution").

First, the lower Court ruled that the judgment in the previous proceeding created an estoppel by record on two counts: first, because the TASE’s interpretation of the listing rules was incorrect; and secondly, because the decision of non-approval lacked necessary factual basis. Secondly, the lower court rejected the argument of the TASE that it is not liable for damages caused to the appellants as a result of the delay in the offering, since any such damages did in fact result from the court’s decision to grant the application for stay of execution. In this matter, the lower Court ruled that the TASE had not adequately considered the impact of the application for stay of execution on the Company, for the documents it submitted – the affidavit of the Director General of the TASE and the protocols from the Board of Directors’ meetings – did not indicate any discussion of this problem. The lower court also rejected the TASE’s claim that its request to expedite the hearing of the appeal should be viewed as a deliberate effort to minimize the damage caused to the Company, and determined that it had acted, first and foremost, in its own best interest. In light of the above, the District Court found that the TASE acted negligently, out of indifference to the potential damage that could be caused to the Company. As a result its actions should be viewed as the cause of damage resulting from the delay of the offering, if indeed such damage was caused. Thirdly, the lower Court ruled that under the circumstances, the Company’s decision to proceed with the offering without the repurchase offer and not to wait for the outcome of the appeal was justified, and therefore it in no way detracted from the validity of their claim.

Subsequently, the District Court examined for the existence of the basis for the tort of negligence, and determined that the TASE owed the Company a conceptual duty of care.  In the framework of this ruling, the lower court addressed the question of the existence of a “relationship of proximity” between the parties and found that, under the circumstances, such a relationship existed. This finding was based on the purpose of the Securities Law and the nature of the powers exercised by the TASE in this case. The lower Court also examined the status of the TASE as an administrative authority, and ruled that in this case the TASE had not exercised its discretion in a manner that justified limitation of its liability for negligence according to customary law. Indeed, according to the judgment in the previous proceeding, the TASE exercised its authority within the framework of specific existing rules. The District Court further ruled that in light of the TASE’s expert knowledge of the financial market, it could have predicted that the deferral of the offering would have definite financial implications for the Company. It therefore bore a concrete duty of care regarding some of the damages sought. These findings notwithstanding, the Court noted that it was not proven that the TASE could have predicted that its decisions would lead to a change in the structure of the offering and a reduced capacity to issue a dividend to the Company’s shareholders.

The District Court also rejected the TASE’s argument that since it acted with the full agreement and consent of the Israel Securities Authority -  the administrative body which oversees it -  it could not be deemed negligent. The court found that even though the procedures relating to the District Court judgment were executed in complete coordination with the Authority, it was not proven that the decisions to appeal and stay the execution were made in consultation with the Authority, and certainly not at its instruction.

Regarding the basis of negligence, the District Court found that both the decision of non-approval and the application for stay of execution were reasonable under the circumstances. Regarding the decision of non-approval, the court ruled that notwithstanding the determination in the previous proceeding that this decision was erroneous, it should not be inferred that it was also negligent. In order to judge the reasonableness of the decision, the court examined the decision-making process and found that it was based on the exercise of professional discretion, in consultation with the relevant professional bodies, including the Israel Securities Authority. Therefore, under the circumstances, there was no negligence in reaching this decision. The court emphasized that at the time the decision was made, the TASE had no precedent in this kind of matter to guide its decision-making. Therefore, to examine the reasonableness of its decision in light of the judgment in the previous proceeding is an exercise in the wisdom of hindsight. Regarding the factual basis that underlay the decision, the Court found that basing the decision of non-approval on concerns that the Company would circumvent the listing rules and that this circumvention would have a negative impact on trading, did not constitute a breach of the standard of reasonableness in the particular field of expertise. In light of the above, the court ruled that there was no negligence in the decision of non-approval.
Regarding the application for stay of execution, the District Court ruled that the failure of the TASE to consider the damages to the Company caused by its application for stay of execution was not sufficient to establish a breach of its duty of care vis-à-vis the Company. Rather, the question of how the TASE would have exercised its discretion had it taken these damages into account must be examined as well. In this regard, the court found that the TASE’s decision was based on reasons that it considered extremely important, foremost of which was the prevention of damage to share trading, which was also recognized in the court's decision to order the stay of execution.  Therefore, it was determined that even if the TASE had taken the damage to the Company into account, it is reasonable to assume that the consideration of preventing harm to the investor community would nevertheless have convinced it to apply for the stay of execution. The court added that the evidentiary material before it did not show that the Company approached the TASE with a request to refrain from delaying the execution, and it did not inform the TASE of the damage that this could potentially entail. The court therefore ruled:

'You could say that since at the time that the application was filed the TASE had reasonable and serious grounds for its application and since Chim Nir voiced no protest regarding the damage it expected to sustain – the very existence of the application cannot be viewed as a breach of the proper standard of care. Or you could say that the TASE’s failure to consider Chim-Nir’s interest was ‘redeemed’ by the Supreme Court’s consideration of the conflicting interests and its decision to grant the application' (at pp. 31-32 of the judgment).

The Appellants’ Claims

The appellants’ claims center on the lower court’s ruling regarding the reasonableness of the TASE’s decisions. First, they contend that the lower court erred in its ruling that the TASE did not breach its duty of care in its decision of non-approval. They claim that the TASE’s interpretation of the listing rules is not erroneous, but rather that it oversteps the bounds of reasonableness. The appellants base this claim on a number of determinations in the judgment of the previous proceeding, including the determination that the TASE interpreted the existing rules in a manner that deviated from their purpose and that it presented an inconsistent position before the court. Moreover, the appellants claim that the very fact that the TASE reached its decision without sufficient factual basis automatically renders it unreasonable. The appellants further argue that in accordance with the judgment in the previous proceeding, there were grounds to decide that the TASE bears an increased duty of care due to the fact that it is a monopoly.
Secondly, according to the appellants, the determination of the District Court that the TASE did not take the foreseeable damages to the Company into account and thus acted negligently in its application for stay of execution is sufficient to establish a breach of its duty of care vis-à-vis the Company. They claim that the court erred when it proceeded to examine what the TASE would have decided had it acted properly: it should have left this inquiry for the second part of the deliberations, in which the question of the causal connection was to be considered. Moreover, the appellants claim that the lower court’s determination regarding the reasonableness of the decision is inherently flawed. They claim that since it has been established that the TASE did not fully take into account the relevant considerations – in this case, the potential damages to the Company – the decision cannot be reasonable. In any case, the appellants claim that had the TASE properly considered the relative cost of the damages, it would have concluded that it should not request the stay of execution. The appellants support this claim with the testimony of the Director General of the TASE to the effect that he did not anticipate that approval of the Company’s offering would cause great harm, and with the fact that the TASE took its time in formulating the maintenance rules.

The appellants add that no significance should be attached to the fact that the Supreme Court granted the application for stay of execution, since the arguments that were raised were later found to be flawed upon in-depth deliberation. Moreover, they claim that the lower court erred in its determination that they did not inform the TASE of the damages that they were likely to incur. They say that they outlined these damages in the application for stay of execution, and they were even mentioned in the District Court’s decision on the application. Furthermore, according to the District Court’s own ruling, most of the damages were foreseeable by the TASE.

The appellants add that the lower Court erred when it determined that a concrete duty of care does not apply with regard to some of the heads of damages claimed. They maintain that since the court divided the proceedings into the questions of liability and damage, it ought to have examined the actual forseeability of each of the heads of damage in the second stage, after the parties presented evidence on this matter. The appellants claim that it was obvious that the delay of the offering would have ramifications determined by the fluctuations of the market. The appellants also add that the District Court’s judgment in the previous proceeding created an estoppel by record in this matter, since it established that the repurchase offer could have a positive effect on the public’s holdings. In any case, the appellants argue that changing the structure of the offering was a form of damage control and that the TASE bears the burden of proof in actions such as these.

Finally, the appellants maintain that the lower court did not address the claim that they have a right to compensation also by virtue of the administrative wrong that the TASE perpetrated, and this warrants the remand of the case to the District Court to complete deliberations upon this issue.

The Respondent’s Claims

The TASE concurs with most of the determinations of the lower court and maintains that its judgment should be upheld. Moreover, the TASE claims that policy considerations, foremost of which is the importance of the smooth operation of the financial market, necessitates its protection from the pressures of actions and demands by issuing companies. Therefore, it advocates the establishment of a principle whereby the TASE will not be liable for damages caused as a result of its regulatory decisions when it acts in good faith and in accordance with the position of the Israel Securities Authority.
Regarding all aspects of the decision of non-approval, the TASE claims that the process that led to the decision was thorough, serious and based on the opinions of experts in the field. The TASE emphasizes that it did everything in its power to ensure that the decision was correct and reasonable – internal consultations were conducted on several levels; external legal counsel was sought; and even the advice and consent of its overseeing authority – the Israel Securities Authority – was obtained. In addition, the respondent claims that the fact that this issue that had never previously been addressed and that there were no precedents to guide its decision, should be taken into account. Therefore, the respondent claims that even if it were found that its final decision was erroneous, it is nevertheless not a case of negligence. The TASE adds that the decision of non-approval was inherently reasonable, in light of the purpose that underlies the rules of public holdings – the avoidance of a small market for shares that will increase the risk of various kinds of trade manipulations. It maintains that this purpose justifies an interpretation that applies the rules regarding the percentage of the shares that must be publicly held throughout the period of share trading in a manner that will prevent the listing rules from being circumvented. Moreover, the TASE claims that the wording of the listing rules is not unequivocal, and that it can support its proposed interpretation.

Moreover, the TASE maintains that in the judgment in the previous proceeding, the tortious significance of the decision of non-approval was not addressed at all and therefore nothing can be learned from it. The TASE adds that the finding in the judgment regarding the lack of a factual basis for the decision of non-approval relates to the possibility that the Company was attempting to bypass the listing rules. It claims that since it did not base its decision on this possibility, it has no implications for the reasonableness of the decision. Finally, the TASE maintains that the appellants’ claims regarding this matter should be dismissed out of hand, since they themselves conceded during the proceedings in the District Court and in the summations submitted to it, that the decision of non-approval was reasonable.

Regarding the appellants’ claims in relation to the application for stay of execution, the TASE maintains that this is an illegitimate extension of claims, since these matters were not mentioned in the pleadings filed with the District Court. Therefore, it claims that the lower court erred when it ruled on them even though no relevant evidence was submitted. Nevertheless, the TASE agrees with the Court’s final decision that under the circumstances it was not negligent in the application for stay of execution.

The TASE further objects to the lower court’s determination that the principle whereby it cannot be held liable for damage that was caused -  so it alleges -  as a result of a judicial order, is not applicable in this case. It argues that since it acted in good faith, in order to uphold its immediate material interest and to exercise its rights under law, a deviation from the principle that “a judicial order cannot cause damage” is unjustified. The TASE also claims that the District Court was inherently mistaken when it determined that it had not considered the damage that would be caused to the Company as a result of the application for stay of execution, for several reasons: first, the testimony of the Chief Executive of the TASE revealed that the possible damages to the Company had indeed been considered in making the decision; secondly, the TASE acted on its own initiative to expedite the hearing of the appeal in order to enable  the Company to issue its offering at such time as it was still apparently eligible for tax benefits; thirdly, in making the decision the TASE was concerned about significant harm to trading, and this concern was expressed in its amendment of the rules within a relatively short space of time, in order to address the problem.

The TASE further adds that the appellants’ suit for compensation based on administrative negligence should be dismissed, since this claim first arose only during the appeal and, in any case, it is insufficiently specific.

Deliberations

The TASE is a private corporation which is charged with the management of the main arena for trading securities in the State of Israel. The structure of the TASE, as well as its powers, are prescribed by the Securities Law and it is subject to the oversight of the Israel Securities Authority. Whereas the Israel Securities Authority is primarily entrusted with the examination of the disclosures of companies issuing shares based on a prospectus, the TASE deals primarily with questions regarding the ongoing trading of securities, such as the distribution of securities among the public (Joseph Gross, Securities Law and the Stock Exchange, at p. 163 (1973)). The Securities Law provides that the establishment of a stock exchange requires a license, it defines the structure of the TASE’s board of directors, and it lays down guidelines for its powers, to be determined in the Regulations. The TASE Regulations establish the rules for the proper and fair management of the TASE, which include the listing rules alongside other rules, with the primary purpose of protecting the regularity of securities trading (Moty Yamin & Amir Wasserman Corporations and Securities 16 (2006), hereinafter: Yamin Wasserman).
In light of these characteristics, even though the TASE is a private corporation, it has already been ruled that when it exercises the power granted to it by law, it should be viewed as an administrative authority operating in accordance with the principles of administrative law (see for example: CA 4275/94 Tel Aviv Stock Exchange Ltd. v. A.T. Management of Torah Literature Database Ltd. [1], at pp. 507-512; CA 1094/95 Tel Aviv Stock Exchange Ltd. v. Chim-Nir Flight Services Ltd. [2] at p. 647; Ronen Adini Securities Law 97 (2004) (hereinafter: Adini)). Indeed, under the principles established by legal precedent, the TASE should be viewed as a hybrid body. Its purpose is a public purpose – to conduct the trading of securities; its powers are defined by law; it maintains a monopoly in its field and it provides a public service (see for example: CA 467/04 Yetach v. Mifal HaPayis [3] paras. 16-19 of my judgment; Assaf Harel Hybrid Bodies 37-52 (2008) (hereinafter: Harel)). Accordingly, the courts have examined the TASE’s decisions through the prism of the principles of administrative law, such as the principle of reasonableness, compliance with the principles of natural justice, etc. (HCJ 555/77 Babchuk v. Tel Aviv Stock Exchange [4] at p. 377; Tel Aviv Stock Exchange Ltd. v. A.T. Management of Torah Literature Database Ltd. [1], at pp. 511-516). At the same time, the activities of the TASE are subject to judicial review. The courts tend to exercise caution in their judicial review of its decisions, in consideration of its professional discretion, insofar as it is exercised in matters regarding which it has special expertise (CA 1326/91 Tel Aviv Stock Exchange Ltd. v. Marcus [5], at pp. 447-452). 

The tort of negligence

At the heart of this appeal lies an examination of the liability of the TASE regarding the tort of negligence, pursuant to the provisions of ss. 35 and 36 of the Civil Wrongs Ordinance [New Version]. In order to establish liability under this tort, the claimant must prove the existence of its basic components: a duty of care, negligence and damage caused a result thereof (see for example: CA 6296/00 Kibbutz Malkiya v. State of Israel [6] at p. 20). The District Court’s judgment addressed only the question of liability – and in that context only the duty of care and negligence – and therefore, this appeal does not address the question of damage. At the outset I note that the question at the center of this proceeding is that of negligence. It is on this that the parties have focused most of their arguments, relegating the arguments regarding the duty of care to the sidelines. Nevertheless, I will discuss the basic components of the tort in order.

Duty of care

The question of when a duty of care between a tortfeasor and an injured party will be recognized has aroused extensive debate in the decisions of this Court. In a nutshell, the prevalent approach in our judicial rulings recognizes two stages in establishing the existence of a duty of care. At the first stage, the existence of a conceptual duty of care is examined, based on the question of whether the tortfeasor, as a reasonable person, should have foreseen the occurrence of the damage. The assumption here is that damage that is foreseeable in physical-technical terms is also foreseeable in normative terms, unless considerations of judicial policy counteract the recognition of this duty. At the second stage, the existence of a concrete duty of care is examined, in view of the particular circumstances of the case relating to the particular tortfeasor and the particular injured party (see for example: CA 145/80 Vaknin v. Beit Shemesh Local Council [7], at p. 13; CA 2061/90 Marzeli v. State of Israel - Ministry of Education and Culture, [8], at p. 802. See also from recent years: CA 5586/03 Freemont v. A. [9], para. 8 of my judgment). According to another approach expressed in judicial rulings, there is no distinction between the conceptual and concrete duty of care, but rather the entire question should be examined as a whole (see for example: CA 10083/04 Gooder v. Modi’im Local Council [10], per Justice Rivlin, at para. 7; CA 2625/02 Nahum v. Dornbaum [11], at p. 386, 408; CA 10078/03 Shatil v. State of Israel [12], per  Justice Levy, at paras. 15-17, 30-31). This approach found expression in the judgment in CA 915/91 State of Israel v. Levy [13], at p. 45, where it was determined that a duty of care will be recognized when two basic conditions are met: first, the condition of “adjacency” or “proximity”; secondly, a judicial conclusion that it is just, reasonable and fair that a duty of care be imposed. The first basic condition involves an examination of the connection between the damager and the injured party – which could be a legal or physical connection, connection by virtue of dependence, etc. – which creates the duty of care. In relation to the second basic condition, various aspects of judicial policy are considered (State of Israel v. Levy [13], at pp. 33-70; see also Nahum v. Dornbaum [11], at pp. 408-409).

Without delving deeply into the difference between these two approaches and also without resolving the question of which one is to be preferred, it would appear that in practice, despite their different points of departure – the first approach is perceived as extending the boundaries of the tort of negligence and the second as narrowing them – similar policy considerations are examined in both approaches, in light of which the boundaries of the duty of care are determined (regarding the relationship between the approaches, see for example: Israel Gilad “On ‘Working Premises,’ Judicial Intuition, and Rationalism in Establishing the Limits of Liability in Negligence” Mishpatim 26 at pp. 295, 304-305 (5758), hereinafter: Gilad “On Working Premises”). These include general considerations which relate to imposing a duty of care upon a person – the desire to deter negligent conduct and to compensate the injured party on the one hand, as opposed to concerns for over-deterrence and overloading the courts on the other (see for example: Gilad “On Working Premises,” at pp. 296-297; Nahum v. Dornbaum [11], at p. 409). Similarly, policy considerations relating to the particular character of the damager, in our case an administrative authority, are also examined, as will be described below.

This was summarized succinctly by my colleague, (then) Justice Rivlin, in his judgment in Nahum v. Dornbaum [11]:

'The application of the tort of negligence is, inter alia, a consequence of setting the limits of the duty of care. These limits tend to distinguish those cases in which a person was negligent and in light of policy considerations it is appropriate to impose liability for his actions upon him, from those cases where the damager was indeed negligent, but policy considerations lead the court to conclude that it is not appropriate to impose liability on him' (p. 408).

The TASE’s duty of care

As stated above, it is accepted that the activities of the TASE are examined by the same criteria as those of an administrative authority. Therefore, in determining whether the TASE owed a duty of care to the Company, which sought to list shares for trading, we must refer to judicial rulings that have dealt with the duty of care borne by administrative authorities, just as the lower court did in its deliberations. In principle, administrative authorities, like any other person or corporation, are subject to liability in torts for their activities and they do not enjoy any specific or absolute immunity from suits on grounds of negligence (Israel Gilad, “The Liability of Public Authorities and Public Servants in Torts (Part One)” Mishpat U’Minhal 2 at p. 339, 393 (5755); Yoav Dotan “The Tortious Liability of a Public Servant Exercising Powers of Discretion” Mishpatim 15 at pp. 245, 246-250 (5746) (hereinafter: Dotan); CA 243/83 Municipality of Jerusalem v. Gordon [14], at pp. 134-136; CA 2906/01 Municipality of Haifa v. Menora Insurance Ltd. [15], at para. 18; Vaknin v. Beit Shemesh Local Council [7], at pp. 124-127). The unique characteristics of the authority, insofar as they find expression in the circumstances of the case before the court, are significant in the context of the policy considerations that limit and define the extent of the duty of care, as noted above. In Shatil v. State of Israel [12], Justice Levy mentioned some of the considerations relevant to the State’s liability in tort, which are applicable to our case:

'On the one hand, recognition of the State’s mission to promote the welfare of its citizens, the desire to prevent the abuse of the immense power that is placed in its hands, and the desire to encourage it to make informed decisions, are all considered.  On the other hand, the concern that government officials will become over-cautious and their ability to act in accordance with considerations relevant to the matter will be impaired is taken into account…; harm to bodies other than this particular damager...; the acceptance that there are certain general risks to which a citizen is exposed in modern society as a result of government activities…; the concern that government activities will be slowed down…, and the concern that governmental bodies, and the legal system that must examine their activities, will be overburdened….    This list is, of course, not closed' (ibid. para. 31).

In addition, in relation to the authority’s actions, the nature of the power granted to it is also considered. In other words, are its powers merely supervisory, or does it control the events that caused the damage? The extent of the discretion exercised by the authority is considered as well (see for example: CA 1678/01 State of Israel v. Weiss [16], at pp. 181-182; CA 1068/05 Municipality of Jerusalem v. Maimoni [17], at paras. 19-22; State of Israel v. Levy [13], at pp. 76-80. For a discussion of the difficulties arising from exceptional discretion as occurred in the Levy case, see for example: Municipality of Haifa v. Menora Insurance Ltd. [15], at para. 41; Shatil v. State of Israel [12], per Justice Levy, at  paras.  23-24).

Bearing in mind all of the above, I decided to address the TASE’s claim that it should bear no tortious liability whenever it exercises its regulatory powers in good faith and in accordance with the policy of the Israel Securities Authority. In other words, acting in good faith and in accordance with the policy of the Israel Securities Authority grants it “quasi-immunity” against tortious liability. As noted above, a determination that the TASE will always be immune to negligence suits for certain kinds of activities does not conform to our own approach. Our approach involves examining the existence of the basic conditions of the tort of negligence in the circumstances of the case, while exercising extra caution if the case justifies it, rather than simply declaring that the authority has absolute immunity in some areas. In this respect, President Shamgar’s words in State of Israel v. Levy are particularly apt:

'The comparative model – which negates the duty of care – is unacceptable to me. The negation of a duty of care amounts to immunity. Once the duty is negated, the question of negligence does not even arise. From an  analytical perspective, negating the duty of care under the given circumstances means that the suit will be rejected' ([13], at p. 81. See also e.g. HCJ 64/91 Khilef v. Israel Police [18], at p. 563; CA 653/97 Baruch and Tzipora Center Ltd. v. Municipality of Tel Aviv-Jaffa [19], at p. 817; CA 3889/00 Lerner v. State of Israel [20], at p. 312).

Nevertheless, as will be explained below, I think that the question of whether the TASE acted in good faith and with the assent of the Israel Securities Authority must be examined when assessing the reasonableness of the actions of the TASE. In other words, it must be examined in order to determine whether the basic conditions of negligence exist, which is the central question in this appeal (on this issue, see for example: Ariel Porat, “Torts Law: Negligence in the Rulings of the Supreme Court from a Theoretical Perspective” Yearbook of Israeli Law 1996-1997 (Ariel Rosen-Zvi, ed., 1997)).

The lower court ruled, and I agree, that there exists a relationship of proximity or adjacency that in principle justifies the imposition of a conceptual duty of care on the TASE. Actually, the primary role of the TASE is to ensure proper and fair trading for the investor community in general. However, the duty of care that the TASE owes the investor community does not negate the existence of a similar duty towards companies whose securities are traded on it. The statutory powers granted to the TASE, which confer supervisory and controlling powers upon it with regard to these companies, must also be considered. In my opinion, these powers create proximity between the TASE and the companies, justifying the application of a conceptual duty of care. This court’s rulings have on numerous occasions addressed the question of the relationship between the tortious duty of care and the statutory powers of an authority. It has found that “not only does the existence of statutory powers not grant immunity or negate liability or duty, but rather the very fact that statutory powers exist serves as the foundation stone on which the conceptual duty of care is constructed” (Municipality of Jerusalem v. Gordon [14], at p. 134. See also: CA 862/80 Municipality of Netanya v. Zohar [21], at p.  766-767; CA 1639/01 Kibbutz Maayan Tzvi v. Karishov, [22], at pp.  215, 282-283; CA 8526/96 State of Israel v. A. [23], at paras. 32-33; Municipality of Jerusalem v. Maimoni [17], at paras. 21-22).

Thus, for example, it is indisputable that regarding a decision to terminate the trading of a share – a decision that the TASE is empowered to make under s. 46(a)(5) of the Securities Law – the TASE owes a duty to the company whose shares have been removed from trade. The same is true in our case. The powers of the TASE in determining the listing rules for share trading create a supervisory relationship, control and even proximity between it and the companies that seek to join it. Those powers generate the duty of care of the TASE toward the companies. The Director General of the TASE even said as much in his testimony before the District Court on October 10, 2002: “I think that our duty is to consider their interest [of the holders of the controlling interest of the issuing company – E.A.]… …Obviously this does not mean that we should or that someone does ignore the needs, problems or desires of the holders of the controlling interest” (at p. 95 of the transcripts, lines 14-23). Moreover, this court has previously addressed the impact of the TASE’s power to set the Listing Rules for companies whose shares are traded on it:

'The provisions of the regulations that deal with the listing of securities for trading on the TASE [establish] conditions for the listing of securities for trading. These conditions stipulate the ‘rights and obligations’ of the public in this regard… They determine the conditions for screening companies whose shares can be traded on the TASE. This affects the legal status of those companies. It also has an impact on their financial capabilities. It influences their ability to raise capital and finance various activities in this manner. It impacts on the business of those companies' (the Torah Literature Database case, at pp. 509-510).

Regarding the TASE’s claim that judicial policy considerations justify its exemption from the conceptual duty of care, I have found no reason to interfere with the lower court's ruling on this matter either. According to this ruling, which is based on this court’s judgment in the previous proceeding, the TASE was not exercising a regulatory power in this case, but rather, applying the provisions of regulations that it determined itself. This kind of application does not involve extensive considerations of policy in a manner that justifies negation of the duty of care. Similarly, I do not accept the TASE’s claim that the imposition of a duty of care vis-à-vis issuing companies will hinder its operations. This Court’s rulings have rejected these kinds of arguments time and again, in light of the fact that they are not generally founded on a factual basis that justifies the granting of immunity to the authority (see for example: CA 429/82 State of Israel v. Suhan [24], at p. 741; CA 196/90 Yirmiyahu Eini Construction Co. Ltd. v. Krayot Committee for Local Planning and Building [25], at p. 127; Shatil v. State of Israel [12], per Justice Levy, at para. 32). Nevertheless, I will state that due to the TASE’s role as the body regulating the activities of the financial market – which is by nature a speculative market – for the benefit of all investors, I believe that certain weight should be assigned to the concern that following a review of its activities from the a tort law perspective, the TASE will stop taking relevant considerations into account when making various decisions. The case at hand demonstrates that sometimes, the TASE’s duty to the wider investor community is incompatible with its duty to one particular company, and we must ensure that the TASE is able to exercise its powers with confidence for the benefit of all investors. Nevertheless, this concern does not justify blanket immunity from suits for damages. Rather it is indicative of the caution that the court must exercise when it imposes liability in tort on the TASE.

As a marginal point, I will add that I have decided not to address the appellants’ argument regarding the connection between the fact that the TASE is a “monopoly” and the extent of the duty of care imposed on it. In any case, I do that think that this argument has a basis in the judgment in the previous proceeding, as the appellants contend. 

Finally, in order to establish a conceptual duty of care, as well as a concrete one, we must examine the question of the damages that the TASE could have predicted might result from a negligent decision regarding approval of the listing of the shares for trade. In this regard, the lower court determined, as noted above, that the TASE, as a body which specializes in the financial markets, could have predicted that the delay of the offering would cause certain types of damage to the Company, such as the deferral of negotiability, a delay in benefit from the proceeds and the costs involved in producing a new prospectus. At the same time, the Court pointed out that it had not been proven that the TASE could have predicted that its decisions would lead to a change in the structure of the offering and a reduced capacity to issue dividends to the Company’s shareholders.

The question of the foreseeability of different types of damages is a complex one, but I do not think that a decision on this issue is necessary or possible in the context of this appeal. First, since the District Court’s judgment did not address the question of damage, a sufficient factual basis for each of the heads of damage claimed was not presented to it, and certainly not to us. Secondly, since we are dealing with damages that were allegedly caused to the appellants in the course of their activities in the financial markets, we must be extra cautious in issuing a ruling that imposes liability for these damages. Activities in the financial markets are speculative by nature, involving opportunities and risk for investors and issuing companies alike. In this light, there is a real conceptual difficulty in the “abstract” examination of various types of damages and the attempt to attribute these damages directly to the TASE. It must also be considered that the relevant period was a time of crisis in relation to investments in the financial markets (see for example: Adini, at pp. 91-95), and this intensified the uncertainty of financial market activities. These factors are particularly relevant when considering that in our case, two different decisions by the TASE are being examined – the decision of non-approval and the decision to apply for stay of execution – each of which required the TASE to foresee damages of different kinds. As the lower court stated:

         'I will mention that my conclusions intertwine different duties of care relating to different decisions. It is clear that the decision of non-approval per se did necessarily entail the delay of the offering. In any case, the damage caused by the delay of the offering should not be viewed as a component of the concrete duty of care that accompanies the decision of non-approval' (at p. 48 of the judgment, note 23).

   I must emphasize that I do not think that these difficulties in determining the limits of the duty of care and foreseeability will prevent the imposition of liability on the TASE for negligent activities in other cases. For example, it would seem that regarding damages that are not directly dependent on the financial markets, such as the cost of producing a new prospectus, it could be decided that a conceptual and concrete duty of care applies. However, I do not think that this is the case in which to examine that question – both in light of the fact that sufficient factual basis has not been presented before us, and in light of my determinations regarding the basis of negligence, which will be explained below.

In conclusion, therefore, I have found that a conceptual duty of care owed by the TASE to companies listing their shares for trading with it may indeed be recognized in principle. However, the question of the extent of this duty – in relation to damages and other kinds of activities – should be left open for further inquiry and consideration when a suitable case graces the chambers of this Court.

The basis of negligence

Having found that the TASE’s duty of care vis-à-vis the Company may be recognized in principle, even without a comprehensive definition of its extent, we must examine whether this duty of care was breached in the circumstances of the case. As I noted above, the element of negligence, which I will now address, is the central issue of the appeal before us.

In the framework of proving negligence, the question of whether the conduct of the damager was improper, deviating from the manner in which a reasonable person would act under those circumstances, is examined. To this end, an objective standard – i.e. the principle of reasonableness – is invoked to examine the concrete circumstances of the case (see for example: CA 5604/94 Chemed v. State of Israel [26] at pp. 507-508; Gilad "On Working Premises,” at pp. 298-299). In this context, it should be added that the actions of the TASE must be examined, first and foremost, in light of the data and information that it possessed at the time it made the various decisions, and not simply based on the judgment handed down by this court in the previous proceeding, several years after those decisions were made. In this respect, President Barak’s words in Chemed v. State of Israel [26]  are particularly apposite:

'The question is not how a reasonable person who is not faced with the particular circumstances of the case would behave; the question is how a reasonable person who finds himself in the damager’s situation would behave. When an examination of reasonableness of conduct is carried out, naturally after the events took place, the goal is to examine the reasonableness of the conduct at the time that it occurred, in accordance with what was known at that time. The examination should not be in light of post-factum knowledge' (ibid. at p. 507. See also: CA 3108/91 Rabie v. Veigel [27], at p. 513; CA 6970/99 Abu Samara v. State of Israel [28], at p. 189).

In order to examine the TASE’s conduct from the perspective of damages, we might invoke the principle of reasonableness that has been developed as the acid test for the activities of an authority in administrative law. As stated by President Barak in CA 1081/00 Avnel Distribution Co. Ltd. v. State of Israel [29], at p. 193:

'An unreasonable act on the administrative plane is likely to constitute a negligent act in private law. Sometimes these are two sides of the same coin…. For a breach of administrative law the administrative remedies will apply. For a breach of duty of care in torts, the civil remedies will apply, except that essentially contradictory remedies will not be given nor multiple compensation' (ibid., at pp. 203-204. See also: Municipality of Haifa v. Menora Insurance Ltd. [15], at para. 42).

Nevertheless, despite the interface between these two concepts of reasonableness, they are not absolutely identical, due to the different goals that underlie them and the different planes on which they are examined (see for example: Municipality of Haifa v. Menora Insurance Ltd. [15], at para. 42 and the references there). For example, without establishing hard and fast rules on the matter, despite the administrative perspective that the court tends to intervene in the authority’s decisions only when these deviate in an extreme manner from the bounds of reasonableness, it cannot be said that the imposition of tortious liability is reserved only for these extreme circumstances (see for example: Dotan, at pp. 279-281). The differing rationales that lie at the basis of judicial review on the administrative plane, and at the basis of judicial analysis on the civil plane, therefore result in differing degrees of judicial intervention.

In this case, we must examine two acts of the TASE which according to the appellants are responsible for the damage that was allegedly caused to them– the decision of non-approval and the decision to apply for stay of execution. I will state from the outset that I find no reason to interfere with the lower court’s conclusion that in the circumstances of the case, the appellants did not succeed in proving that the TASE was negligent in making these decisions. Below I will explain my reasoning in relation to each of the decisions in turn.

The decision of non-approval

The decision of non-approval was made, as mentioned, based on the provisions of s. 46(a)(2) of the Securities Law, which authorizes the TASE to lay down in its Regulations rules for the listing of shares for trading, including the number of shares that must be held by the public immediately after they are listed. The decision of non-approval was also made on the basis of reg. 73a of the Regulations, which provides that the ratio held by the public shall be no lower than that specified in the guidelines. In the judgment in the previous proceeding this Court ruled that the decision of non-approval was mistaken, but that this error does not suffice to establish that the TASE was negligent. Not every mistaken decision by a body exercising professional discretion – be it an administrative authority or otherwise – is automatically a negligent decision (see for example: CA 4707/90 Mayorkas v. State of Israel –Ministry of Health [30]). In this matter I accept the District Court’s distinction that when examining negligence, significant weight must be attributed to the decision-making process. In exceptional cases, where a decision appears to be obviously and absolutely mistaken, it may be determined that even a decision made according to proper procedure was negligent. However, in this case we are not dealing with a decision of this kind.

In our case, there is no dispute that prior to making the decision, the TASE consulted extensively with all the relevant parties – senior executives at the TASE, the TASE’s Committee for Listing of Securities, the TASE’s Board of Directors, its legal advisors, and the Israel Securities Authority. Like the District Court, I am of the opinion that the decision of non-approval was made following a thorough process of clarification and deliberation, with the participation of all the relevant professional bodies. Therefore, I find that no flaw in the decision-making process can be identified, and not even the appellants themselves have claimed such a flaw.

As mentioned above, the appellants argue that despite this process, the TASE’s decision was unreasonable. Indeed, according to the judgment in the previous proceeding, the TASE deviated from the accepted interpretation of the listing rules and made a decision with insufficient factual basis. The judgment in the previous proceeding – which is obviously the basis of the appellants’ claims – was centered on a different question from that which we seek to clarify in our case, i.e. the question of the TASE’s tortious liability. Therefore, even though the Court’s ruling in the previous proceeding is relevant, a situation whereby a decision on the question of damages is based on “the wisdom of hindsight” must be avoided. It is therefore incumbent upon us to focus on examining the discretion exercised by the TASE at the actual time. In the course of the decision-making process, according to the testimony of the Director General of the TASE and the documents provided, the TASE considered with due seriousness the damages that it thought would be caused to the investor community as a result of the publication of the prospectus as it was, and found that these justified its non-publication (see for example pp. 58, 63, 70, 77-78 of the transcripts of the hearing of October 21, 2002 and also appendices C-F of the TASE’s summation). Indeed, the primary function of the TASE is to ensure that trading is conducted in a proper and fair manner, for the benefit of all investors (see for example: Yamin Wasserman). At the same time, as I will discuss further below, among its considerations the TASE must take into account the impact that its decision will have on the company whose case it is addressing. In this case, in light of all that has been said about the proper conduct of the decision-making process, I am not of the opinion that there are grounds to rule that the discretion exercised by the TASE in “real time” was unreasonable.

I say this particularly in light of the fact that in the course of the decision-making process, the TASE consulted with the Israel Securities Authority, its supervisory authority. Now, I do not think that a position taken by the Israel Securities Authority binds the TASE to the extent of absolving it from all responsibility for the outcome of its decision. The TASE – just like any other authority exercising its powers – has a duty to exercise its discretion notwithstanding the supervising authority’s position (on this issue, see for example: Zamir, at pp. 862-863; Yirmiyahu Eini Construction Co. Ltd. v. Krayot Committee for Local Planning and Building [25], at pp. 132-133. Also cf: CA 491/73 Gedolei Hacholeh Ltd. v. Machruz [31], at pp. 37-38; Haim Levy, Moshe Smith and Marshall Sarnat The Stock Exchange and Investments in Securities pp. 118-119 (Marshall Sarnat and Joan Dilevsky, eds. 1999)). However, the consultation process, which none of the parties claimed was problematic, is generally an effective and appropriate step in the decision-making process (see also: HCJ 5933/98 Israeli Documentary Filmmakers Forum v. President of the State [32] at pp. 510-513; HCJ 8850/02 Pastinger v. Minister of Justice [33], at p. 705). The Israel Securities Authority’s position can constitute an indication of the reasonableness of the decision, as manifested in the opinion of the relevant expert bodies. In our case, the consent of the Israel Securities Authority shows that the decision made was seen as reasonable, correct and professional.

Another factor that I consider important in terms of the reasonableness of the TASE’s decision is the fact that its decision of non-approval was apparently the first time that the TASE had dealt with a purchase offer of the kind that the Company sought to include in its prospectus. However, I accept the lower court's determination, which was founded on the judgment of this court in the previous proceeding, that in making this decision the TASE exercised executive powers, as opposed to regulatory powers, as will be explained below. Nevertheless, even though the TASE exercised its discretion within existing regulations, it had no guidelines regarding the treatment of this repurchase offer. Moreover, it is indisputable that this matter lies at the very heart of the TASE’s operations, and it has the potential to impact both the investor community and the public’s trust in the TASE. Under these circumstances, I am of the opinion that “the tortious range of reasonableness” of the decision should be broader.

In my opinion, this factor also has an impact on the appellants’ claims regarding the making of the decision of non-approval in the absence of a sufficient factual basis. Indeed, in the judgment in the previous proceeding, this court ruled that the TASE’s decision lacked factual basis, and the District Court found that this ruling created an estoppel by record. I see no reason to interfere with this determination, but I also do not think that it affects what I said earlier regarding the reasonableness of the decision, for the following two reasons. First, I found there to be substance in the TASE’s claim that the ruling on the lack of factual basis was made as a marginal point, and it related to the possibility that the decision of non-approval was based on the concern that the repurchase offer was a scam and an attempt to bypass the listing rules. Secondly, in examining the reasonableness of the TASE’s activities from the perspective of torts, I am of the opinion that the extent of the discretion granted to the TASE must be considered also in light of the information required to create a basis for the decision. Thus, even though it is clear that an authority may not base a decision on a flimsy factual basis, there is a range within which an authority is entitled to decide what information is essential in order to make the decision (see for example: Yitzhak Zamir The Administrative Authority Vol. 2 at p. 737 (1996), hereinafter: Zamir). This is its professional expertise. In our case, I do not think that TASE deviated from this range of reasonableness, in light of the fact that the decision was based on professional considerations and information. Moreover, some of the information required for the decision was data related to the operation of the financial markets and the response of the investors to the Repurchase Offer – information which is particularly difficult to obtain in advance (see e.g.: Zamir at p. 758). Under these circumstances, I am of the opinion that basing the decision on a genuine concern for damage that could be caused as a result of the publication of the prospectus as it was, does not overstep the bounds of the tortious range of reasonableness.

In conclusion, for the above reasons, I find that there was no negligence in the TASE’s decision of non-approval.

The decision to apply for stay of execution

As noted above, a significant part of the damages claimed by the appellants is the result of the decision of the TASE to apply for stay of execution of the judgment handed down by the District Court – an application that was granted by this court. The lower court found that even though there was no impediment to examining the TASE’s liability for damages caused by the decision to stay the execution of the judgment, since it did not take into consideration the damages that could be caused to the Company as a result of the application, nevertheless, the TASE did not act negligently in its decision to apply for stay of execution. I accept this determination in principle, but I find that its application in this case is not simple.
As we know, the approach that a judgment or other judicial order could not be the basis for a tort was once dominant in Israeli law, and as such, a litigant acting by virtue thereof was considered to be acting in accordance with legal authority and was thus immune to law suits (see for example: CA 735/75 Roitman v. Aderet [34] at pp. 82-83. See also: Municipality of Jerusalem v. Gordon [14], at p. 144). However, it has been ruled in various cases over the years that the aforementioned immunity will not apply to one who initiated legal proceedings in a negligent manner (CA 732/80 Arens v. Beit El – Zichron Yaakov [35], at pp. 645, 656; Municipality of Jerusalem v. Gordon [14], at p. 145; LCA 1565/95 S’char V’Sherutei Yam Ltd. v. Shalom Weinstein Co. Ltd. [36]; LCA 2422/00 Ariel Electrical Engineering Traffic Lights and Maintenance v. Municipality of Bat Yam [37], at p. 618). Judicial precedent has interpreted the duty of care borne by the litigant in this context as a duty to act reasonably, fairly and in good faith, and most importantly to present the full factual picture required for a decision on the dispute before the court (S’char V’Sherutei Yam Ltd. v. Shalom Weinstein Co. Ltd. [36], per Justice Mazza, at para. 21, and per Justice Türkel, at para. 2).  Türkel’s judgment). It has also been ruled that the degree of good faith required of a party to a process is dependent on the character of the relevant process and the nature of the issue in dispute (MCApp 2236/06 Hamami v. Ohayon [38], at para. 10).
As noted above, the TASE is quasi-public body with professional expertise. As such, it is required to exercise discretion before deciding to file an application with the court to stay the execution of a judgment (on the issue of the duties imposed on these kinds of bodies, see for example: HCJ 731/86 Micro Daf v. Israel Electric Co. [39] at p. 499; CA 294/91 Kehillat Yerushalayim Jewish Burial Society v. Kestenbaum [40] at p. 491; CA 3414/93 On v. Diamond Exchange Enterprises (1965) Ltd. [41] at p. 196; LCA 1784/98 Amidar v. Manada [42] at pp. 335-336; Harel, at pp. 243-256). Within the bounds of this discretion, it must weigh the full gamut of considerations relevant to the matter, including the foreseeable damages to the other party that may result from the stay of execution, even if it cannot always know the full extent and details of the damage. I must stress that I am not of the opinion that the TASE bears a duty to take extraordinary measures to assess damages that are not claimed or presented before it. It must formulate an informed position as to whether the damage it will foreseeably incur outweighs the foreseeable damage to the opposing litigant, based on the information it possesses and its professional expertise, so that it may claim that the balance of convenience is tipped in its favor.

Indeed, one must be cautious in overburdening a litigant with obligations in regard to the initiation of proceedings, since this could violate the basic right of access to the courts (see for example: CA 4980/01 Adv. Shalom Cohen (Official Receiver) v. Glam [43] at p. 625; S’char V’Sherutei Yam Ltd. v. Shalom Weinstein Co. Ltd. [36], per Justice Strasberg-Cohen, at para. 5). Moreover, the litigant in our case represents the public interest of the investor community, which does not have the professional knowledge and expertise possessed by the TASE. On the other hand, I am aware of the difficulties involved in a proceeding during which the court is asked to provide temporary relief when the factual picture before it is not entirely clear and when this relief could violate on the rights of the other litigant (see for example: Dudi Schwartz Civil Procedure at pp. 91-93 (2007)). I am therefore of the opinion that the TASE must consider all the factors – including the damage that will be caused to the Company as a result of the stay of execution – before submitting an application, and it must do so on the basis of the information it possesses. This is based on the assumption that the opposing party will present its arguments in full and will provide the court with a detailed picture of the damages that will be caused to it since, in the nature of things, this information should be in its possession. 

To my mind, the TASE fulfilled its duty in this regard. First, in our case it was not claimed that the TASE breached its obligation to present the court with a full factual basis, or that it requested the stay of execution as a means of harming the Company or in a manner that abused its rights (Adv. Shalom Cohen (Official Receiver) v. Glam [43], at pp. 629-630; Dudi Schwartz “The Application of the Principle of Good Faith in Civil Procedure” Iyunei Mishpat 21 at pp. 295, 329-330 (1988)). On this point, I do not think that the appellants’ claim that the TASE presented misleading or erroneous arguments to the court should be accepted. Indeed, in the final analysis, the TASE’s arguments were rejected in the course of the appeal, but it was not determined – nor proven – that it concealed facts or that it deliberately attempted to mislead the court. As the lower court determined in the final section of its judgment, at the time when it submitted the application, the TASE had reasons which it considered to be highly significant and to justify the application for stay of execution. The foremost of these was concern for the damage that could be caused to the financial markets if companies were able to include in their prospectuses repurchase offers of the kind that the Company had inserted into its prospectus.  In this sense, it seems that the TASE exercised a right granted to it by law in order to protect interests that seemed important to it both at that time and later as well, as demonstrated by the amendment of the listing rules.

Secondly, I am unconvinced that the evidentiary material presented before the lower court shows clearly that the TASE acted out of indifference to the damages that would be caused to the Company as a result of the application. The lower court based its determination that the TASE did not consider the damages that would be caused to the Company primarily on the fact that it did not present satisfactory evidence of internal deliberations concerning these considerations. In my opinion, weight should be attached to the fact that the appellants’ claims regarding negligence in the application for stay of execution were made in a tentative fashion, as noted by the lower court as well (at p. 60 of the judgment). Under these circumstances, I think that the aforementioned lack of evidence does not tip the scales in favor of a ruling that the TASE was negligent in initiating the proceeding to stay execution. Moreover, the court noted that it is possible that the Company did not even notify the TASE of these foreseeable damages (at p. 61 of the judgment). In addition, my impression is that the TASE’s request to expedite the date of the appeal hearing attests to its awareness of the difficulty that the delay could cause the Company, as well as to its willingness to facilitate a speedy decision on the matter. It is possible that the request to expedite the hearing stemmed from the TASE’s own interests, but this does not negate the fact that the Company also benefited as a result. In conclusion, this court – after hearing the arguments of both sides – found that there were grounds to stay the execution of the judgment until a ruling was issued on the appeal. In my opinion, this lends credence to the determination that the decision to apply for stay of execution was reasonable at that time.

Therefore, I do not find that the TASE was negligent in its decision of non-approval or its decision to apply for stay of execution of the judgment.

 

Conclusion

In light of all of the above, even though I believe that a duty of care between the TASE and companies issuing their securities on it should be recognized in principle, I do not find that in the circumstances of this case the extent of this duty can be clearly defined. Similarly, I do not find that the appellants have succeeded in showing that the TASE’s decisions were negligent in a manner that would make it liable for the alleged damages that were caused to the Company as a result of the delay of the offering. I would further add that I have not seen fit to discuss the appellants’ claim for compensation by virtue of the tort of negligence, which was claimed in a general and unsubstantiated fashion.

Therefore, I propose that my colleagues dismiss the appeal and order the appellants to cover the court costs and the respondents' legal costs in the amount of NIS 40,000. Appellant 1 will pay NIS 20,000 and the remainder will be divided equally among appellants 2-14.

                                      

Deputy President E. Rivlin

I concur.

                                       

Justice D. Cheshin

I concur.

                                         

Decided as per the decision of Justice E. Arbel.

 

26 Sivan 5768

 29 June 2008

LCA 1272/05

Gad Carmi

v.

Daniel Sabag

 

 

The Supreme Court sitting as the Court of Civil Appeals

[2 December 2007]

Before Justices M. Naor, E. Arbel, E. Rubinstein

 

Application for leave to appeal the judgment of the Haifa District Court (Judges I. Amit, Y. Elron, Y. Willner) of 29 December 2004 in CA 2174/04.

 

Facts: The appellant suffered from a mental illness. On 1 October 1999, the appellant attacked the respondent, who was then an eight year old child, and seriously wounded him. The appellant then attacked his own daughter and killed her. The appellant was indicted for murder and attempted murder, but because of the mental illness from which he suffered, he was found not to be responsible for his actions, and he was hospitalized in a psychiatric hospital. The respondent, through his parents, sued the appellant for compensation.

 

Held: Tort law does not recognize a defence of insanity according to the meaning of ‘insanity’ in criminal law, i.e., when the defendant did not understand what he was doing or the impropriety of his act, or could not refrain from committing the act because of a mental illness. Tort law recognizes only a defence of lack of control, when the tortfeasor had no control over his actions (such as in a case of automatism), either because of a physical or mental illness.

 

Appeal denied.

 

Legislation cited:

Penal Law, 5737-1977, ss. 34G, 34H, 34H(2), 34V(2).

Road Accident Victims Compensation Law, 5735-1975.

Torts Ordinance [New Version], ss. 1, 9, 9(a), 23, 24, 24(1), 35, 56.

Treatment of Mental Patients Law, 5751-1991, s. 15(b).

 

Israeli Supreme Court cases cited:

[1]      LAA 741/06 A v. B (unreported).

[2]      CrimA 549/06 A v. State of Israel (unreported).

[3]      CrimA 118/53 Mandelbrot v. Attorney-General [1956] IsrSC 10 281; IsrSJ 2 116.

[4]      CA 145/80 Vaknin v. Beit Shemesh Local Council [1983] IsrSC 37(1) 113.

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

[6]      CrimA 125/50 Yakobovitz v. Attorney-General [1952] IsrSC 6(1) 514.

[7]      CrimA 852/85 Funt v. State of Israel [1988] IsrSC 42(2) 551.

[8]      CrimA 217/04 Al-Quraan v. State of Israel (unreported).

[9]      CrimA 2325/02 Biton v. State of Israel [2004] IsrSC 58(2) 448.

[10]    CrimA 759/97 Ilyabayev v. State of Israel [2001] IsrSC 55(3) 459.

[11]    CrimA 392/91 Schatz v. State of Israel [1993] IsrSC 47(2) 299.

[12]    CA 67/66 Bar-Chai v. Steiner [1966] IsrSC 20(3) 230.

[13]    CA 360/64 Abutbul v. Kluger [1965] IsrSC 19(1) 429.

[14]    CrimA 549/06 A v. State of Israel (not yet reported).

[15]    CA 187/52 Halperin v. Mayor of Tel-Aviv [1954] IsrSC 8 219.

[16]    CrimA 2/73 Sela v. State of Israel [1974] IsrSC 28(2) 371.

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

[18]    CrimA 382/75 Hamiss v. State of Israel [1976] IsrSC 30(2) 729.

[19]    FH 12/63 Leon v. Ringer [1964] IsrSC 18(4) 701.

[20]    FH 15/88 Melech v. Kornhauser [1990] IsrSC 44(2) 89.

[21]    CA 6216/03 Nasser v. M.H.M. Ltd (unreported).

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

[23]    CA 4733/92 Haifa Chemicals Ltd v. Hawa (unreported).

[24]    CA 418/74 Amamit Insurance Co. Ltd v. Weinberger [1975] IsrSC 29(1) 303.

[25]    CA 8797/99 Anderman v. District Appeal Committee [2002] IsrSC 56(2) 466.

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

[27]    CA 2034/98 Amin v. Amin [1999] IsrSC 53(5) 69; [1998-9] IsrLR 611.

[28]    CA 8673/02 Forman v. Gil [2004] IsrSC 58(2) 375.

[29]    CA 11152/04 Pardo v. Migdal Insurance Co. Ltd [2006] (2) IsrLR 213.

[30]    CrimA 186/55 Mizan v. Attorney-General [1967] IsrSC 11(1) 769.

[31]    CrimA 2947/00 Meir v. State of Israel [2002] IsrSC 56(4) 636.

[32]    LCA 5768/94 ASHIR Import, Manufacture and Distribution v. Forum Accessories and Consumables Ltd [1998] IsrSC 52(4) 289.

[33]    CA 8163/05 Hadar Insurance Co. Ltd v. A (not yet reported decision of 6 August, 2007).

[34]    CA 350/77 Kitan Ltd v. Weiss [1979] IsrSC 33(2) 785.

 

Israeli District Court cases cited:

[35]    CC (Hf) 1888/66 Yasmin v. Kahalani IsrDC 80 161.

[36]    CC (Hf) 165/92 State of Israel v. Davidowitz [1993] IsrDC 5753 3.

[37]    SFC (Jer) 5093/02 State of Israel v. Pimstein (unreported).

[38]    CC (Jer) 653/94 Arbel v. Shaare Zedek (unreported).

[39]    CC (Hf) 751/93 Stern v. Z.E. Gilad Security Co. Ltd (unreported).

 

Israeli Magistrates Court cases cited:

[40]    CC (TA) 118124/01 Jarfi v. Somech (unreported).

[41]    CC (Jer) 8636/99 Gordon v. State of Israel (unreported decision of 19 October 2006).

 

American cases cited:

[42]    Williams v. Hays, 143 N. Y. 442 (1894).

[43]    Shapiro v. Tchernowitz, 155 N.Y.S 2d 1011 (1956).

[44]    Breunig v. American Family Insurance Company, 45 Wis. 2d 536 (1970).

 

English cases cited:

[45]    White v. White [1950] P. 39.

[46]    Hanbury v. Hanbury (1892) 8 T.L.R. 559.

[47]    Morriss v. Marsden [1952] 1 All ER 925.

[48]    Nettleship v. Weston [1971] 2 Q.B. 691.

[49]    Cole v. Turner (1704).

 

Jewish law sources cited:

[50]    Jeremiah 17, 9.

[51]    Esther 9, 5.

[52]    Rabbi David ben Shelomo Ibn Abi Zimra (Radbaz), Responsa, part V, 239 and part VI, 2246.

[53]    Rabbi Akiva Eger, Responsa 64.

[54]    Rabbi Yaakov Ettlinger, Responsa Binyan Zion HaHadashot, 98.

[55]    Rabbi Yehuda Assad, Responsa Yehuda Yaaleh, part 1, 1.

[56]    Mishnah, Bava Kamma, 8, 4.

[57]    Maimonides, Hilechot Hovel uMazik 4, 20.

[58]    Rabbi Yosef Karo, Shulhan Aruch, Yoreh Deah, 267, 8.

[59]    Talmudic Encyclopaedia, vol. 8, ‘The human tortfeasor’; vol. 17, 495 ‘Deaf person’, 542 ‘Deaf persons, insane persons and minors.’

[60]    Rabbi Menachem HaMeiri, Bet HaBehira, Bava Kamma, 87, 1.

[61]    Rabbi Moses Sofer, Responsa Chasam Sofer, Yoreh Deah, 317.

[62]    Rabbi Yosef ben Meir Teomim, Pri Megadim, Orach Hayim, General Introduction at the beginning of part 2.

[63]    Prof. A. Steinberg (ed.), Encyclopaedia of Jewish Medical Ethics, vol. 2, ‘Deaf person’; vol. 6, ‘Insane person.’

[64]    Maimonides, Hilechot Mechira, 29, 5.

[65]    Babylonian Talmud, Bava Kamma 26a.

[66]    Babylonian Talmud, Sanhedrin 72a.

[67]    Leviticus 1, 3.

[68]    Rabbi Shelomoh Yitzhaki (Rashi) on Leviticus 1, 3.

[69]    Babylonian Talmud, Arachin 21a.

[70]    Rabbi Meir Leibush ben Yehiel Michel (Malbim), Commentary on Leviticus.

[71]    Rabbi Naftali Hertz Wessely, HaBiur on Leviticus.

[72]    Rabbi Baruch Epstein, Torah Temima on Leviticus.

 

For the appellant — A. Huberman, S. Khatib, E. Yakobi.

For the respondent — S. Efroni.

 

 

JUDGMENT

 

 

Justice E. Rubinstein

1.    This case concerns the liability in tort of a person suffering from a mental illness. It is an application to appeal the judgment of the Haifa District Court of 29 December 2004 (Judges Amit, Elron and Willner) in CA 2174/04, which, by a majority (Judges Amit and Elron, Judge Willner dissenting), denied the appeal filed by the applicant (now the appellant) against the judgment of the Haifa Magistrates Court of 5 January 2004 (Judge Sokol) in CC 12851/00. Judge Rivlin decided to refer the application for leave to appeal to a panel of three justices. On 7 December 2005, at the end of a hearing before the present panel, this Court gave leave to appeal. Now that the parties have filed their closing arguments, we are giving judgment.

Background

2.    On 1 October 1999, a day that ended tragically, the appellant, his wife and their daughter, a ten month old infant, went to the park near their home. The appellant called the respondent, who was then an eight year old child, and asked him to ‘say hello’ to his infant daughter. Ten minutes later the appellant called the respondent once again, and when he came to him, the appellant took out a knife and stabbed him several times deeply in his neck, stomach and hands. The respondent left the site bleeding, with his intestines spilling out of his abdomen. The appellant then proceeded to slit the throat of his infant daughter, who died immediately. The respondent was rushed to hospital, where he underwent surgery five times in ten days, and his life was saved. The appeal concerns a claim in tort that was filed by the respondent through his parents against the appellant.

3.    In the criminal sphere the appellant was indicted for murder and attempted murder. On 13 March 2000, after it received several psychiatric opinions, the District Court (President Lindenstrauss and Judges Joubran and Neeman) granted an application filed by the parties, and held that the appellant had committed the acts attributed to him in the indictment, but he was not liable to any penalty because of the mental illness from which he suffered and also continued to suffer at the time of the trial. The court ordered the appellant to be hospitalized in a closed ward in a psychiatric hospital, under s. 15(b) of the Treatment of Mental Patients Law, 5751-1991 (hereafter: the criminal judgment).

The civil proceeding in the Magistrates Court

4.    After the criminal proceeding ended, the respondent filed a civil claim in tort against the appellant. On 5 January 2001, the Magistrates Court (Judge Sokol) granted the claim, and found the appellant liable to pay the respondent NIS 302,940, which consisted of the following: NIS 200,000 for non-pecuniary damage, NIS 70,000 for loss of future income, NIS 20,000 for expenses and assistance and NIS 12,940 for corrective plastic surgery. In a detailed and learned judgment, Judge Sokol addressed the question of the liability of mentally ill persons in tort. The court discussed the fact that the legislature did not provide any defence against liability in the Tort Ordinance similar to the ‘insanity’ defence provided in s. 34H of the Penal Law, 5737-1977, but it thought that this should not be regarded as a negative arrangement. The court considered the three main approaches to this issue in English law, as they were discussed long ago by Prof. Englard (I. Englard, A. Barak, M. Cheshin, The Law of Torts — General Theory of Torts (second edition, G. Tedeschi ed.. 1977), at pp. 131-137 (hereafter: Englard et al., The Law of Torts)): the first approach, which was the approach of the well-known English judge Lord Denning in White v. White [45], at p. 59, according to which ‘a person will be liable in torts, even if, as a result of a mental illness, he does not know the nature or the moral character of his act’ (Englard et al., The Law of Torts, at p. 133). This approach is founded on the fundamental approach that liability in tort is based on the principle of compensation, not fault. The second approach is the approach of Lord Esher in Hanbury v. Hanbury [46], which is also cited in White v. White [45], according to which criminal and tort law should apply the same standard of liability. The third approach is an intermediate approach that was propounded by Judge Stable in Morriss v. Marsden [47], according to which the tortfeasor does not need to understand the moral significance of his act, but a minimal mental element of control is required (Prof. Englard uses the term ‘volition,’ which means ‘the mental act by means of which a person makes himself the cause of his conduct’ (p. 136), i.e., the control exercised by a person’s personality over the movements of his body). Prof. Englard adopted the intermediate approach. The Magistrates Court also reviewed case law in the United States, and discussed how conflicting rulings have been made on this issue.

5.    After he examined the various purposes underlying the law of torts, Judge Sokol held that ‘the conclusion from all of the aforesaid is that as a rule the tortfeasor’s mental illness does not provide him with a defence against liability in tort’ (p. 10). He therefore turned to examine whether the illness of the appellant before us exempts him from liability in tort for assault (s. 23 of the Torts Ordinance [New Version][1]), which is the relevant tort in our case, since it contains a special mental element — ‘intentionally.’ From an analysis of the criminal judgment the Magistrates Court concluded that ‘the plaintiff acted with intent, will and an ability to refrain from carrying out the act,’ and therefore it held that despite the mental illness from which he suffered at the time of the act, the appellant satisfied all the requirements of the tort, including the requirement of intent, and consequently it found him liable to pay compensation.

The judgment in the District Court

6.    On 29 December 2004 the District Court, by a majority, denied an appeal filed by the appellant against the judgment of the Magistrates Court. The three Judges (Amit, Elron and Willner) considered the unprecedented question at length, with extensive discussion of comparative law and the theoretical elements of the law of torts. I should first point out that the District Court overturned the finding of fact in the Magistrates Court, and it held that the criminal judgment was also based on the second alternative provided in s. 34H of the Penal Law, i.e., a defendant who ‘lacks any real ability… to refrain from committing the act’ (p. 24). We shall return to examine this matter below. The three Judges of the panel considered both the general subject of the exemption of mentally ill persons from liability in tort and the specific issue of whether the elements of the tort of assault are satisfied. Their opinions are comprehensive and thorough, and it appears that there is no argument that was not raised and considered in detail. I will discuss the main points of their opinions in brief, as a basis for our deliberations.

Judge Amit’s opinion

7.    Judge Amit denied the appeal, even though he found that the lack of a defence of insanity in the Torts Ordinance is not a negative arrangement (p. 13). According to him, Prof. Englard’s approach recognizes an exemption from liability even in cases that satisfy the alternative provided in s. 34H(2) of the Penal Law (‘lacks any real ability… to refrain from committing the act’ — emphasis added), but he held that a more restrictive interpretation should be adopted, according to which only cases that fall within the scope of s. 34G of the Penal Law (‘if he was unable to chose between doing it and not doing it because of a lack of control over his body movements’ — emphasis added) will constitute a defence in tort (p. 19). Judge Amit expressed agreement with the remarks of Judge Neumann of the Haifa District Court that were uttered many years ago:

‘The defendant had volition to shoot at the plaintiff and an expectation of harming him. He knew what he was doing. In my opinion these facts are sufficient for determining liability in tort, which is not negated because the defendant did not act with free will but as a result of an irresistible urge, even when the urge increased… I would say in brief: volition is required for liability in tort, free will is not required’ (CC (Hf) 1888/66 Yasmin v. Kahalani [35], at p. 168 (emphasis added)).

Judge Amit found support for this arrangement in s. 374 of the Property Law Memorandum, 5766-2006 (hereafter: the Property Law Memorandum), according to which ‘No one shall be liable in tort for an act if he was incapable of choosing between doing it and not doing it, because of a lack of control over his movements with regard to that act,’ where the emphasis is placed, as stated, merely on the lack of physical control. Judge Amit based this narrow approach on the main purpose of the law of torts, which is to compensate the respondent for the damage that he suffered (p. 28).

8.    Judge Amit discussed how the tort of assault requires a mental element of intent, but he held that de facto the tort has an aspect of strict liability, since anyone who touches another without his consent is considered to have committed an assault, even if he has no improper intent (p. 26). Judge Amit mentioned the wording of the tort in the Property Law Memorandum, according to which ‘An assault is a conscious use of force, whether directly or indirectly, against a person’s body, without his consent’ (s. 389, emphasis added), and he concluded:

‘In my opinion, the special character of the tort of assault as a tort of strict liability or as a tort that has elements of strict liability tips the scale in favour of imposing liability on the appellant as someone who intended to harm the respondent, even if in view of his mental state he lacked intent’ (p. 26).

From an analysis of the defence provided in s. 24(5) of the Torts Ordinance, Judge Amit sought to deduce that just as a person has a right of self-defence against a mentally ill person, so too does he have a right to be compensated by him.

9.    Judge Amit also addressed judicial policy considerations. In the part of his opinion entitled ‘On justice and public policy’, he expressed the opinion that damage that is caused without fault should be borne by the tortfeasor, and not by the victim; this decision is more just, and provides the family and relations of the mentally ill person with an incentive to ensure that he does not hurt others (p. 36). He went on to say:

‘To this we should add the concern — or perhaps the fear — that psychiatry is a less precise science than other fields of medicine… the general public, which is not familiar with fine medical-legal distinctions finds it hard to understand or accept the defence of insanity… In civil law, there is a concern that recognizing insanity as a defence in tort will lead to false claims of insanity’ (pp. 37-38).

Finally, Judge Amit reviewed other legal systems, including Jewish law, but it would appear that this review did not lead to an unequivocal conclusion. Ultimately, Judge Amit proposed that the appeal should be denied.

10. I should also point out that regarding the burden of proof Judge Amir was of the opinion that the finding of the District Court in the criminal proceeding on the question of the appellant’s mental state could not serve as sufficient evidence in the civil proceeding. He said that in the criminal trial the appellant needed to establish a reasonable doubt that the defence applied (s. 34V(2) of the Penal Law), whereas in civil law he needed to prove his mental state on a balance of probabilities, which he did not do. According to Judge Amit, ‘this in itself is sufficient reason to deny the appeal’ (p. 11). I should immediately say here that in this matter I believe that we should adopt the position of Judges Elron and Willner, that —

‘When the parties have reached an agreement that the factual findings of the District Court in the criminal proceeding should serve as a basis for the judgment in the civil proceeding, and when counsel for the state has agreed that at the time of the act the appellant was incapable of refraining from doing it, this should also be regarded as an agreed fact in the civil proceeding’ (p. 57, per Judge Willner; see also the remarks of Judge Elron at p. 79).

This statement does not necessarily cast any light on cases in which there is no such agreement, since in those cases I am of the opinion that the position expressed by Judge Amit is correct.

Judge Willner’s opinion

11. Unlike Judge Amit, Judge Willner was of the opinion that the appeal should be allowed. In her opening remarks, Judge Willner disagreed with Judge Amit and held that the absence of a defence of insanity in the Torts Ordinance is not a lacuna but a negative arrangement (p. 46), and this arrangement is justified since ‘a sweeping and fundamental exemption from liability under the Torts Ordinance for someone who is mentally ill or has a mental disability would be unjust and far-reaching’ (p. 46). In any case, according to Judge Willner, the liability of a mentally ill person in tort ‘should be examined on its merits for each individual tort, in the same way as the liability of a healthy person is examined’ (p. 47).

12. Unlike Judge Amit, however, Judge Willner held that since the tort of assault requires a special mental element (‘intentionally’), this cannot be satisfied by someone ‘who at the time of the act lacked free will and an ability to refrain from the act that he did’ (p. 51). She said that ‘intent’ includes an element of will, but this means free will rather than mere volition:

‘For the purpose of proving the element of “intentionally” that is required in order to satisfy the mental element of the tort of assault, it is necessary to prove that at the time of the act the tortfeasor was graced with free will, i.e., the desire and ability to choose whether to act in a certain way or not’ (p. 50, emphases in the original).

For this reason, she said that:

‘Liability in tort for assault should not be imposed on a tortfeasor if it is proved that even though the act was accompanied by volition, the source of the volition was a mental illness, i.e., if at the time of the act the tortfeasor did not have free will because of the mental illness that took hold of him and denied him the ability to make decisions’ (p. 49, emphasis in the original).

These findings were based on both a dictionary analysis of the requirement of intent and the assumption that the tort of assault requires a certain degree of subjective fault. In broader terms Judge Willner held:

‘The rationale underlying the recognition of an exemption in tort for someone who acts as a result of physical automatism is also entirely applicable in the case of someone who acts as a result of mental automatism. I see no legal, ethical or social justification for distinguishing between the cases and discriminating against someone who acted as a result of a mental illness that controlled his actions, as opposed to someone who acted as a result of a physical factor that controlled his actions. In both cases the tortfeasor is unable to refrain from committing the act’ (p. 52).

13. In the part of her opinion entitled ‘Thoughts about justice,’ Judge Willner discussed the legal policy considerations proposed by Judge Amit. She began by citing the remarks of Prof. A. Porat that ‘if the tortfeasor has a mental illness, he will be regarded as lacking volition. Consequently, considerations of compensatory justice will not justify imposing liability on him’ (A. Porat, ‘Law of Tort: The Tort of Negligence according to the Case Law of the Supreme Court from a Theoretical Viewpoint,’ Israel Law Yearbook (A. Rosen-Zvi ed., 1996), at p. 373). Later Judge Willner discussed the fact that empirically mentally ill persons —

‘… whose minds are in any case troubled by their illness, are compelled to deal with the social and economic difficulties that they encounter on a daily basis. Research shows that these people, in addition to the disabilities that result from the illness, suffer from poverty and a lack of social resources. Research found that 80% of mentally ill persons have been diagnosed with psychoses; 90% do not earn a living…’.

These figures were based on an article of U. Abiram, ‘Social Integration of Chronically Mentally Ill Persons: An Old Problem in a New Context,’ 61 Social Security 42 (November 2001), in which he says:

‘And finally, imposing liability on the mentally ill person is tantamount to a determination that the mentally ill person is in some sense at fault in committing the act. The finding that the mentally ill person is at fault is a paradox, since someone who committed the act as a result of insanity… cannot be considered, from an ethical, social or legal viewpoint, to be at fault’ (at pp. 54-55).

Judge Elron’s opinion

14. The main thrust of Judge Elron’s position is found in the part of his opinion entitled ‘Historical review and comparative law.’ First he surveyed English law, the essence of which was mentioned above in the summary of the Magistrate Court’s judgment. Judge Elron went on to survey the law in the United States, where there are conflicting rulings, both with regard to liability in tort in general, and with regard to torts that require intent in particular (even though I should point out that the approach that imposes liability would appear to have greater support). The same is true in New Zealand, Australia and Canada. The survey ends with a consideration of Continental law, and especially German law, which provides:

Ԥ 827 Ausschluss und Minderung der Verantwortlichkeit

Wer im Zustand der Bewusstlosigkeit oder in einem die freie Willensbestimmung ausschließenden Zustand krankhafter Störung der Geistestätigkeit einem anderen Schaden zufügt, ist für den Schaden nicht verantwortlich...’

Ԥ 827. Exclusion and reduction of responsibility

A person who, in a state of unconsciousness or in a state of pathological mental disturbance preventing the exercise of free will, inflicts damage on another person is not responsible for such damage…’ (German Civil Code (BGB) § 827).

Alongside this exemption, the German Civil Code provides a possibility of imposing an obligation to pay compensation on the tortfeasor, if it is not possible to find a third party liable, and the tortfeasor’s economic position allows and justifies requiring him to pay full or partial compensation:

‘§ 829 Ersatzpflicht aus Billigkeitsgründen

Wer in einem der in den §§ 823 bis 826 bezeichneten Fälle für einen von ihm verursachten Schaden auf Grund der §§ 827, 828 nicht verantwortlich ist, hat gleichwohl, sofern der Ersatz des Schadens nicht von einem aufsichtspflichtigen Dritten erlangt werden kann, den Schaden insoweit zu ersetzen, als die Billigkeit nach den Umständen, insbesondere nach den Verhältnissen der Beteiligten, eine Schadloshaltung erfordert und ihm nicht die Mittel entzogen werden, deren er zum angemessenen Unterhalt sowie zur Erfüllung seiner gesetzlichen Unterhaltspflichten bedarf. ’

Ԥ 829. Liability to pay damages for reasons of equity

A person who, for a reason stated in sections 827 or 828, is not responsible for damage caused in one of the cases stated in sections 823 to 826, shall nonetheless make compensation for the damage, unless compensation can be obtained from a third party who is charged with a duty of supervision, to the extent that in the circumstances, including the economic circumstances of the parties concerned, equity requires indemnification and he does not lack the resources needed for his own reasonable maintenance and for discharging his statutory maintenance duties’ (German Civil Code (BGB) § 829).

Judge Elron said that this is also the position in France and Switzerland. At the end of the survey, Judge Elron said:

‘It can be said that we see how complex the issue in our case is and how many different opinions there are… It can be said with a large degree of certainty that the courts have not yet contended with the question on a fundamental legal level but it would appear that they have usually decided cases intuitively by looking for a fitting solution in the cases that came before them that is consistent with their approach’ (p. 77).

15. Ultimately Judge Elron agreed with the result reached by Judge Amit, but disagreed with his reasons. According to Judge Elron —

‘No distinction should be made between persons suffering from mental illnesses and persons suffering from physical illnesses who act without any ability to determine their conduct, i.e., to control their conduct, and the level of the mental element required for the tort of assault should not be set even lower than the mental element required for the tort of negligence’ (p. 80, emphases in the original).

Judge Elron criticized the approach of Judge Willner, which ‘focused on the protection of the mentally ill tortfeasor and in practice ignored the rights of the innocent and blameless victim’ (p. 84, emphasis in the original), and he discussed the growing tendency to focus on the rights of the victim in criminal trials. Finally, Judge Elron considered what should be regarded as justice in the circumstances of the specific case: ‘Why should a tortfeasor with means be exempted from compensating an injured person without means for the damage that he caused him?’ (p. 85, emphasis added), and ‘What is the law where there is no dispute as to the economic stability of the mentally ill person, whereas the victim has limited means and ability?’ (p. 86, emphasis added). Judge Elron concluded by holding:

‘I too feel compelled by statute in this case — by the wording of the tort of assault and the mental element required to satisfy it. But even if we are returning to the opinion that was expressed in the past — according to which the idea of compensation, rather than the idea of fault, is what lies at the heart of liability in tort — I prefer resorting to this principle to find the appellant liable. Therefore I am of the opinion that we should adopt the approach that even if someone with a mental defect cannot be considered to be aware of his actions in the normal sense, he is still the person who caused harm to another, and as such he ought to be the person who is held liable’ (p. 87, emphasis in the original).

The arguments of the parties in the appeal

16. The main arguments of the parties address fundamental questions concerning liability of mentally ill persons in tort and the basic requirements of the tort of assault. The arguments were presented above, and we shall return to consider them later. The appellants claim, inter alia, that considerations of justice cannot be a substitute for examining whether the requirements of the tort are satisfied — an argument that is directed mainly against the opinion of Judge Elron. Alternatively, they argued that the compensation awarded should be reduced in such a way that it is proportionate to the subjective fault of the appellant.

Methodology

17. On the question of the liability of mentally ill persons in tort, Prof. Englard wrote the following:

‘This question has two different aspects. First, it is possible that the defect in the tortfeasor’s mind prevents him from forming the special mental state needed for a particular tort. In a situation of this kind, he will not be liable in tort. But this determination says nothing new, because in the absence of the required mental element, it is not possible to hold a mentally ill person liable in tort, just as it is not possible to hold a healthy person liable in such circumstances… Second (and this is the main question), assuming that the requirements of the tort are satisfied from an objective viewpoint, is it necessary to prove that the tortfeasor was graced, at the time of the act, with a certain degree of free will and discernment’ (Englard et al., The Law of Torts, at pp. 132-133).

Accordingly, we shall begin our deliberations with the specific question whether the appellant’s mental state at the time of the incident allowed the requirements of the tort to be satisfied. Obviously, only if the answer to this question is yes will there be any reason to turn to the second and more general question of whether it is possible to impose liability on mentally ill persons who are not liable to any sanction under criminal law for the act. In order to answer the first question, we need to examine both the mental state of the appellant at the time of the incident, and the mental element required for the tort of assault. This is the path that we shall follow.

The appellant’s mental state at the time of the incident

18. The claim was filed in reliance on the findings that were determined in the criminal trial in the District Court. In that proceeding, the court granted the consensual application of the parties and ordered the hospitalization of the appellant under s. 15(b) of the Treatment of Mental Patients Law, 5751-1991, which provides:

‘If a defendant is indicted and the court finds that he has committed the actus reus of the offence of which he was indicted, but it decides, whether on the basis of evidence brought before it by one of the parties or on the basis of evidence brought before it on its own initiative, that the defendant was ill at the time of the act and therefore is not liable to any sanction, and that he is still ill, the court shall order the defendant to be hospitalized or to receive treatment in a clinic’ (emphases added).

It would appear that at no stage did the District Court expressly and clearly determine which of the alternatives provided in s. 34H of the Penal Law applied to the defendant — subsection (1) which provides that the defendant ‘lacks any real ability to understand what he is doing or the impropriety in his act,’ or subsection (2) which provides that the defendant ‘lacks any real ability… to refrain from committing the act.’ A study of the two decisions of the District Court (the decision of 10 January 2000 (hereafter: the first decision) and the decision of 13 March 2000 (hereafter: the second decision)), gives rise to possible indications that support the two alternatives.

19. In the first decision, President Lindenstrauss cited the opinion of Dr Ben-Ephraim, who said that ‘the person I examined committed the act… when he was unable to distinguish between good and evil, what is permitted and what is prohibited’ (p. 11, emphasis added); but later he said that the appellant ‘lacked any real ability to understand what he was doing, or the impropriety in his act and to refrain from doing it’ (p. 12, emphasis added). President Lindenstrauss addressed the fact that the interrogation of the appellant by the police showed that ‘he was aware of his acts at the time of committing the offences’ (p. 13), and he wished to summon the experts in order to consider the question ‘whether the defendant lacked any real ability to understand what he did at the time of the act’ (p. 13, emphasis added). Judge Joubran agreed with this position. But Judge Neeman expressly held that ‘the other criterion provided in s. 34H, that because of his illness he “was unable to refrain from doing the act” also applies here’ (p. 18, emphasis added). For this reason, Judge Neeman held: ‘I see no reason or need to cross-examine the psychiatrists’ (ibid.).

20. In the second decision, which was given after the experts were cross-examined, President Lindenstrauss cited passages from the opinion of the experts that would appear to relate only to the first alternative (p. 48, line 12 (Dr Ben-Ephraim); p. 48, line 22 (the District Psychiatrist)), and addressed the conflict between the opinions with regard to the appellant’s competence to stand trial (with regard to his condition at the time of the act there was no difference of opinion). Finally the court granted the application of the parties and held ‘that the defendant committed the acts involved in the offence of which he was charged, and that he was mentally ill at the time of committing the acts and therefore was not punishable, and that he was still mentally ill’ (p. 54). It is hard to discover from this decision the precise state of the appellant at the time of the act, i.e., which of the alternatives in s. 34H applies.

21. In the civil trial, the Magistrates Court considered the mental state of the appellant on the basis of the criminal judgment and the evidence before the criminal court. First, the Magistrates Court considered the transcript of the appellant’s statements in his police interrogation, from which it concluded ‘that the defendant [the appellant] fully understood the significance of his attack on the plaintiff’ (p. 17 of the judgment). The court attached particular attention to the following remarks: ‘When I arrived at the park… there was a certain moment when I decided that this was it, I worked up sufficient courage, I decided that before I harm the baby and myself, I decided that I would harm another child’ (p. 17). In reply to the police interrogator’s question ‘Why?’, the appellant answered: ‘Not to kill him, to harm him, for the simple reason that the doctors and the police harmed my baby… for reasons that I do not know’ (p. 17). Later, the Magistrates Court held that in the criminal proceeding the District Court:

‘… did not determine that the defendant was not liable because of a lack of volition, nor did it determine anywhere that the defendant could not have refrained from harming the plaintiff because of the mental illness. All that it determined was that the defendant did not understand the impropriety of the act’ (p. 18).

If we translate this finding into the language of criminal law, the Magistrates Court was of the opinion that the appellant fell within the scope of the provision in s. 34H(1) in that ‘he lacked any real ability to understand…’.

22. As stated above, this finding was overturned by the District Court in the judgment under consideration in this appeal. Judge Amit held:

‘In my opinion, it is possible to deduce from the decision of the District Court the opposite conclusion, which is that the District Court intended to attribute to the appellant a lack of volition. At the very least, it is impossible to know which alternative the District Court intended… Consequently, the judgment of the trial court, in so far as it relies on its interpretation of the District Court decision, cannot stand’ (p. 22).

Later, Judge Amit regarded the conduct of the appellant as ‘automatism that deprived him of volition’ (p. 24). Judge Willner held: ‘In determining the mental state of the appellant at the time of committing the act, I disagree with the position of the trial court and agree with the opinion of Judge Amit’ (p. 55). According to her: ‘The parties agreed that when the act was committed, the appellant lacked any real ability to refrain from doing the act’ (p. 56, emphasis in the original), and she went on to say: ‘The finding of the trial court that the District Court did not determine that the appellant could not refrain from harming the respondent because of the mental illness cannot be reconciled with the decision of the District Court’ (p. 56). Judge Elron did not make any express determination with regard to the appellant’s mental state, but he remarked that ‘prima facie the determination of the trial court in our case that the appellant acted “with intent, will and an ability to refrain from committing the act” is problematic and hard to accept’ (p. 83, emphasis in the original).

23. (a) Thus the District Court changed the finding of the Magistrates Court with regard to the interpretation of the District Court’s judgment in the criminal trial, and it held that the appellant not only ‘lacked any real ability to understand what he was doing or the impropriety in his act,’ but also that he ‘lacked any real ability… to refrain from doing the act.’ Admittedly, in his reply to the appeal the respondent claims that ‘the applicant understood the act that he committed and also intended to do it,’ but I see no reason to consider this factual aspect of the matter in the court of third instance (see LAA 741/06 A v. B [1]).

(b) Let me explain briefly. ‘The heart is most deceitful and weak; who can understand it?’ (Jeremiah 17, 9 [50]). The human soul is complex, and ‘to a large extent it remains an unknown science’ (CrimA 549/06 A v. State of Israel [2]). It is hard for a healthy person to understand what is taking place in the soul of someone who has been recognized as suffering from paranoid schizophrenia. What does it mean to ‘lack any real ability… to refrain from doing the act’? To the ordinary person it appears that, in the narrow meaning of the phrase, the defendant did exactly what he intended to do, and had he not wanted to do it, he would not have done it. Indeed, there are those who deny the existence of such an inability — see A. Parush, ‘Insanity, Lack of Control and Section 34H of the Penal Law (Amendment no. 39) (Preliminary Part and General Part), 5754-1994’, 21 Tel-Aviv University Law Review (Iyyunei Mishpat) 139 (1998). The learned author describes the innovation in s. 34H as adding a ‘willingness test’ (‘to refrain from doing the act’) to the cognitive test in the old legislation (‘to understand what he is doing or the impropriety in his act’). As he explains, the new legislation contains an innovation in relation to previous case law, and the wording of the amendment also constitutes an innovation, since it does not use the previously accepted term of ‘an uncontrollable impulse’ (see pp. 140-143). Inter alia, the author analyzed the case in CC (Hf) 165/92 State of Israel v. Davidowitz [36], which is very similar to our case. In that case, a woman killed her two young daughters by drowning them in the bath. The District Court, by a majority, found that she was not liable under criminal law, even though she understood that she was causing the death of her children, and in the opinion of most of the psychiatrists she also understood that what she did was prohibited (p. 164). According to Prof. Parush, defendants in such cases should be exempted from liability by interpreting the cognitive test broadly. (It should be noted that in another tragic case (SFC (Jer) 5093/02 State of Israel v. Pimstein [37], per Judge Zylbertal), a case in which the defendant killed his young daughter by drowning her, it was held that the defendant did not suffer from a mental illness and he was convicted of murder; for the earliest case of the ‘willingness test’ in case law, see CrimA 118/53 Mandelbrot v. Attorney-General [3], at p. 287 {123}, in which Justice Agranat held that the appellant lacked any real ability to refrain from committing the act. See also A. Carmi, Health and Law (vol. 1, 2003), at pp. 847-867).

(c) In the circumstances of our case, however, the court’s ability to arrive at conclusions from fragmented and partial citations of the expert opinions and the interrogation transcript is very limited. As we have said, only one judge in the criminal trial addressed this matter directly, and he expressly held that the alternative in s. 34H(2), namely the inability to refrain from doing the act, is also applicable in this case (Judge Neeman, supra). Indeed, the remarks of his two colleagues in the criminal trial were not absolutely clear, but in view of his express finding, and the extensive consideration by the District Court of the question of interpretation in the judgment under appeal, I see no reason to intervene in this factual finding. In the words of Justice Agranat, it would appear that ‘the imaginary persecution… may become so dominating that volition is ultimately dethroned’ (Mandelbrot v. Attorney-General [3], at p. 300 {140}). Indeed, I cannot rule out the possibility that the other approach is correct, namely that the defendant was unable to understand what he was doing or the impropriety in his action. Were we to adopt this position, our task would be easier. But for the purpose of the civil case we shall adopt the position that is prima facie more favourable to the appellant, namely that in the criminal sphere the appellant ‘lacked any real ability… to refrain from doing the act.’ Let us therefore turn to examine the issues relevant to the law of torts.

Social fault and moral fault

24. I cannot fail to say here that prima facie the consideration of this claim would have been somewhat easier had it been based on the tort of negligence, since in negligence there is liability even if the defendant is not aware of the impropriety of his actions:

‘The concept of reasonableness (or negligence) in the tort of negligence is an objective concept. “The reasonableness of the measures of care is determined in accordance with objective criteria, which are encapsulated in the statement that the tortfeasor should act as a reasonable person would act in the circumstances of the case” (CA 145/80 Vaknin v. Beit Shemesh Local Council [4], at p. 131). The question is not whether the tortfeasor fell short of the standard of conduct of which he is capable (“subjective negligence”). The question is whether the tortfeasor fell short of the standard of conduct that society regards as the proper one (“objective negligence”). Indeed, reasonableness in the tort of negligence is not based on “personal” fault. The tortfeasor may do his best, and still act unreasonably, where the tortfeasor’s competence falls short of the competence expected of the reasonable person. This was well expressed by Lord Denning, when he said that “his incompetent best is not good enough” (in Nettleship v. Weston [48]). The approach is that the tortfeasor fell short of the standard of conduct demanded by society (see G. Tedeschi (ed.), The Law of Torts: The General Theory of Torts (1969), at p. 129; I. Gilad, “On the Elements of the Tort of Negligence in the Israeli Law of Torts,” 14 Tel-Aviv University Law Review (Iyyunei Mishpat) 319 (1989), at p. 321, and Restatement, Second, Torts, at p. 11)’ (CA 5604/94 Hemed v. State of Israel [5], at p. 506, per President Barak).

Negligent persons are examined in accordance with an objective standard, according to which society seeks to regulate conduct and spread losses, irrespective of his subjective fault. Only ‘in those cases where the plaintiff’s personal standard does not fall short of that of society does “moral” fault also accompany social fault’ (I. Gilad, ‘On the Elements of the Tort of Negligence in the Israeli Law of Torts,’ 14 Tel-Aviv University Law Review (Iyyunei Mishpat) 319 (1989), at p. 322). It will be recalled that even in legal systems that impose liability in tort on mentally ill persons there is case law that mentally ill persons are incapable of satisfying the requirement of intent in the tort of assault, which can be regarded as a requirement of subjective fault (see Williams v. Hays [42]; Shapiro v. Tchernowitz [43]). The fact that liability in negligence is generally imposed without subjective fault makes it ‘easier’ (if one can use such a word) when applying it to mentally ill persons. Certainly the tort of negligence is more suited to cases that do not concern an initial manifestation of the illness, which is the position in the present case, since the appellant had psychiatric problems in the past. In such cases it is possible to consider liability in tort both with regard to the mentally ill person who did not take appropriate care and with regard to additional persons (members of his family, and possibly even health and welfare authorities, without making any firm determination on this question; in our case, however, apparently no previous indications were reported). Indeed, focusing on objective social fault allows the court to take into account additional factors such as the economic position of mentally ill persons, the ramifications on the possibility of integrating them in the community, and influencing society’s attitude towards them. But the case before us is a claim for assault.

The elements of the tort

25. (a) Section 23 of the Torts Ordinance provides:

‘Assault

23. (a) An assault is the use of force of any kind, intentionally, against a person’s body…’

(b) The special mental element required for a tort of assault is ‘intentionally,’ and this is one of the mechanisms for limiting liability in tort. This is also the word used in the original version introduced by the British Mandate (see G. Tedeschi & A. Rosenthal, The Tort Ordinance from the Perspective of the History of its Creation and Amendments, at p. 72). As a rule, this term has been interpreted in common law as referring to will and desire (G. Williams, ‘Oblique Intention,’ 46 Cambridge L. J. (1987) 417). Prof. Englard gave the definition that ‘A person acts “intentionally” when he foresees a certain result of his act and wants it to happen’ (Englard et al., The Law of Torts, at p. 126 (emphasis added); see also D. Krezmer, The Law of Torts: The Individual Torts — Assault and False Imprisonment (G. Tedeschi (ed.), Jerusalem, 1981), at p. 8; S. Dagan, Problems in the Law of Torts (vol. 1, 2002), at p. 164). Intention in the present context therefore includes awareness and will (or desire) (this is also the usual interpretation of the requirement of intent in criminal law; there is no reason why reference cannot be made to criminal law in the linguistic sphere, despite the difference between criminal and tortious liability): see S.Z. Feller, Fundamentals of Criminal Law (vol. 1, Jerusalem, 1984), at p. 550; Y. Levy & E. Lederman, Principles of Criminal Responsibility (Tel-Aviv, 1981), at p. 410; CrimA 125/50 Yakobovitz v. Attorney-General [6], at p. 545; CrimA 852/85 Funt v. State of Israel [7], at p. 557. Admittedly, it has been said that from a legal viewpoint ‘intent can even exist without will’ (CrimA 217/04 Al-Quraan v. State of Israel [8], per President Barak), in the context of the ‘foreseeability rule,’ but the foreseeability rule is fundamentally an exception to the rule, and in any case there is an inherent lack of clarity as to whether it refers to ‘intent’ or to some kind of moral equivalent).

(c) In the case before us, the stabbing of the respondent did not occur negligently. It did not happen absentmindedly. It was an intentional act. The appellant knew what he was doing (‘I decided that I would harm another child’ (p. 17 of the judgment of the Magistrates Court)). He planned and foresaw the consequences (‘Not to kill him, to harm him,’ (ibid.)) and the presumption is — and no argument was raised against this — that he wanted to cause those results (CrimA 2325/02 Biton v. State of Israel [9]; CrimA 759/97 Ilyabayev v. State of Israel [10]; CrimA 392/91 Schatz v. State of Israel [11]). This analysis, according to which the requirement of intent relates mainly to awareness of the act itself rather than the mental considerations that underlie it, is prima facie consistent with the definition of the tort as proposed in the Property Law Memorandum: ‘An assault is a conscious use of force… against a person’s body…’ (s. 389 (emphasis added)). The explanatory notes state: ‘The word “conscious” indicates that the section refers to awareness of the actual use of force against another person. The essence is the awareness of the act itself, rather than the question whether there was an intention to cause damage.’ It therefore follows that the appellant satisfies all the elements of the tort.

(4) It is possible to compare this — to a very different case, of course — to the application of the tort of assault to the action of a doctor even though his intention is to cure and not to cause harm. The ordinary person does not regard a doctor as an ‘aggressor’; the doctor does not intend to commit an assault — he intends to cure; but in so far as he acts without obtaining the patient’s consent, he does commit an assault, despite his good intentions (see CA 67/66 Bar-Chai v. Steiner [12], at p. 232 (per Judge B. Cohen); Dr A. Azar & Dr I. Nirenberg, Medical Negligence (second edition), at p. 217; CC (Jer) 653/94 Arbel v. Shaare Zedek [38]). From the viewpoint of the law of torts, any contact without consent is considered an assault. In the words of Lord Chief Justice Holt in Cole v. Turner [49]: ‘The least touching of another in anger is a battery’ (see also CA 360/64 Abutbul v. Kluger [13], at p. 469, per Justice Silberg). Some authorities hold — in my opinion correctly — that the public misconception, i.e., the failure to understand the connection between the doctor’s act and the legal concept of assault, was one of the main reasons for the decline in the use of the tort of assault with regard to medical treatment and the rise of negligence claims: Englard, The Philosophy of Tort Law (1993), at p. 162.

26. Let us return to our case. At this stage, when we are examining the elements of the tort, the question why the appellant intended to do the tortious act or why he wanted its consequences is irrelevant. The question of the motive for committing the act can arise if a defendant raises a defence argument, whether under s. 24 of the Torts Ordinance, or one of the general defence arguments, such as necessity (A. Barak, The Law of Tort — The General Theory of Tort, at pp. 294-301) or a private defence (Englard et al., The Law of Torts, supra, at pp. 281-293). As a rule, this question has no place in the discussion concerning the elements of the tort. The question whether a mental illness constitutes a defence in itself will be considered below.

27. The conclusion that the question of motive is of no significance when considering whether the element of intent exists was expressed in a ‘radical’ manner in the judgment of Judge Neumann in Yasmin v. Kahalani [35], which was cited by Judge Amit and which we cited in para. 7 above. The essence of what he said was that ‘volition is required for liability in tort, free will is not required.’ This, in my opinion, is consistent with common sense and fairness to the victim who bears no responsibility whatsoever. By contrast, the responsibility of the mentally ill tortfeasor is problematic and requires consideration and deliberation, but it cannot be said that it is unfounded, and in my opinion there is a good reason for it.

28. (a) Before we turn to the question of whether a mental illness constitutes a defence, I should add that the word ‘intent’ in this context should be interpreted in accordance with the purpose of the legislation. The concept will not always be given the same interpretation even within the framework of civil law, and certainly its interpretation in civil law will be different from its interpretation in criminal law (see I. Englard, Victims of Road Accidents Compensation (third edition, 2005), at pp. 266-267); see also para. 25(b) above.

(b) I do not deny that ‘intent’ is an amorphous concept that is very hard to define. This can be seen from the difficulties in interpreting ‘intent’ in criminal law, according to the relevant sections in the Penal Law and their complex wording. There are those who seek to define the concept of intent without referring to the element of will, inter alia by means of concepts such as reason, cause or object (for a comprehensive review, see Y. Kugler, Intent and the Foreseeability Rule in Criminal Law (Jerusalem, 1997), at p. 469). It is possible that Judge Amit also sought to follow this path in our case, when he spoke of the new wording of the tort of assault as proposed by the Memorandum: ‘An assault is a conscious use of force…’ (s. 389, emphasis added); in my opinion, ultimately all of the considerations on this issue support the approach that we should identify whether there is volition, even if this volition does not amount to free will, and I return to the remarks of Judge Neumann in Yasmin v. Kahalani [35]. The appellant foresaw that something was going to happen as a result of his actions — and that something did indeed happen — and that is what he wanted at that moment. The intent that we are dealing with is therefore the same as in Morriss v. Marsden [47], as can be seen from the statements of the appellant himself.

(c) What, therefore, is the meaning of the requirement that the tort should be done willingly (and ‘intentionally’)? Can it not be said that in this case the appellant did precisely what he wished to do? The latter question was answered in the negative by Judge Willner (p. 50), mainly following the dictionary definition of the Hebrew word כרצונך (literally, ‘according to your will’): ‘According to your will: as you wish, according to your desire, the decision in is your hands: “And they did to their enemies as they wished” (Esther 9, 5 [51])’ (A. Even-Shoshan (1969 edition, vol. 6, at p. 2559). My opinion is different. In my opinion, the answer to this question is yes. The dictionary definition does not, in my opinion, include all the fine nuances of the law; the will of someone who acts intentionally is also his volition, as we have explained above.

On intent in Jewish Law

29. (1) I should add that even in Jewish law there is a lack of clarity in the definition of ‘intent,’ and a question frequently arises as to whether mere awareness is sufficient or whether a tangible element is needed, and if so, what does this involve (see Rabbi David ben Shelomo Ibn Abi Zimra (Radbaz, Spain and Safed, fifteenth-sixteenth centuries), Responsa, part V, 239 and part VI, 2246 [52]). Admittedly, it is an accepted rule that an insane person (shoteh) cannot have intent. This is true of sacrificial offerings (Rabbi Akiva Eger (Poland, eighteenth-nineteenth century), Responsa 64 [53]), and it is also true of ritual immersion (Rabbi Yaakov Ettlinger (Germany, nineteenth century), Responsa Binyan Zion HaHadashot 98 [54]) and criminal sanctions (Rabbi Yehuda Assad (Hungary, nineteenth century), Responsa Yehuda Yaaleh, part 1, 1 [55]). As the judgment of the trial court states, on the general question of the liability of insane persons in tort, Jewish law holds: ‘A deaf person, an insane person and a minor are problematic in torts; whoever injures them is liable, but if they injure others, they are exempt’ (Mishnah, Bava Kamma, 8, 4 [56]; Maimonides, Hilechot Hovel uMazik (Laws of Tortfeasors) 4, 20 [57]; Rabbi Yosef Karo, Shulhan Aruch, Yoreh Deah, 267, 8 [58]). Notwithstanding, it has been said that judges should punish deaf persons, insane persons and minors, in order to remove their harm from society (see Talmudic Encyclopaedia, vol. 17, 542, ‘Deaf persons, insane persons and minors’ [59], and the references cited there; see CrimA 549/06 A v. State of Israel [14]). Moreover, in cases similar to ours Rabbi Menachem HaMeiri (Provence, thirteenth-fourteenth centuries) explains: ‘And if they harm others, they are exempt, even if they have recovered… since when they committed the act they were compelled’ (Bet HaBehira, Bava Kamma, 87, 1 [60] (emphasis added)). The reason why an insane person is exempt, namely that he is not capable of forming intent and he is treated as someone acting under duress, also appears in other commentators and arbiters (Rabbi Moses Sofer (Hungary, eighteenth-nineteenth centuries), Respona Chasam Sofer, Yoreh Deah, 317 [61]; Rabbi Yosef ben Meir Teomim (Ukraine, eighteenth century), Pri Megadim, Orach Hayim, General Introduction at the beginning of part 2 [62]; see also Y. Bazak, The Criminal Liability of the Mentally Disabled (second edition, 1972), at pp. 253-256).

(b) It may be asked — and naturally I am not an arbiter of Jewish law and am not making any ruling on the subject — whether it is also possible to regard these matters against the background of time and place. For example, a deaf person in Jewish law is not necessarily someone whose hearing is impaired but may be someone of subnormal intelligence (see the scope of the difficulties in this regard in the Talmudic Encyclopaedia, vol. 17, 495 et seq., ‘Deaf person’ [59] and see Prof. A. Steinberg (ed.), Encyclopaedia of Jewish Medical Ethics, vol. 2, ‘Deaf person’ [63], for a description of the deaf person in Jewish law sources as someone who is not entirely lacking in intelligence, but whose intelligence is weak and incapable of comprehension like other human beings (p. 538)). In other words, this is not exactly the deaf person of modern times. Is it possible that the same may be said of insane persons? In this regard, see also Encyclopaedia of Jewish Medical Ethics, vol. 6, ‘Insane person’ [63]. The definition of an ‘insane person’ is not simple (ibid., at pp. 421-423 [63]), and there are persons who are ‘sometimes insane and sometimes sane’ (ibid., at p. 452 [63], and see Maimonides, Hilchot Mechira (Laws of Sale), 29, 5 [64]). Maimonides (ibid.) states the law as follows:

‘If someone is sometimes in control of his faculties and sometimes not in control of his faculties, such as an epileptic, when he is in control of his faculties all of his acts are legally valid and benefit himself and others like any sane person, and the witnesses should examine the matter thoroughly; perhaps he did what he did at the beginning of his period of insanity or at the end of his period of insanity.’

I have not said the aforesaid in order to imply that this is what happened in our case, but to indicate the great complexity of the subject.

(c) It should also be added that ‘Human beings are always responsible, and liable to pay full compensation, whether they act negligently or deliberately, whether awake or asleep, whether acting unwillingly or willingly, and even if others compelled him to cause damage…’ (Talmudic Encyclopaedia, vol. 8, ‘The human tortfeasor’ [59], column 170; see also Babylonian Talmud, Bava Kamma 26a [65], Sanhedrin 72a [66], and elsewhere). This too may have ramifications for our case. The world of Jewish law also recognizes the approach that ‘we compel him, until he says that he is willing’; thus, for example, regarding burnt offering sacrifices the Bible says: ‘he shall offer it willingly before the L-rd’ (Leviticus 1, 3 [67]), and Rabbi Shelomoh Yitzhaki (Rashi) (France, eleventh-twelfth centuries) [68] says: ‘Willingly: how is this the case? We compel him until he says that he is willing’ (following the Babylonian Talmud, Arachin 21a [69]). Professor Nechama Leibowitz, in her book New Studies in the Book of Leviticus, cites various interpretations of the expression ‘willingly.’ Rabbi Meir Leibush ben Yehiel Michel (Malbim) (Ukraine-Romania, nineteenth century) [70] explains ‘willingness’ in two ways — ‘the appeasement that [G-d] will be willing to forgive the sin’ and the will or desire for something. Rabbi Naftali Hertz Wessely (Germany, eighteenth-nineteenth centuries) in his commentary HaBiur on Leviticus [71] explains inter alia ‘that the word “willingness” in the Bible does not mean free will, but the opposite of anger…’. Rabbi Baruch Epstein (nineteenth-twentieth centuries), the author of the Torah Temima commentary on the Torah [72], explains the expression ‘we compel him until he says that he is willing’ as compelling a person to discover what is ‘hidden in the recesses of his soul.’ All of these sources show the complexity of the concept of willingness, which is not limited to one meaning.

Is a mental illness a defence in tort?

30. As stated above, the question why the appellant attacked the respondent may be significant when considering the question of what defences can apply. It is clear that had the appellant committed the act ‘reasonably in order to protect himself or another against loss of life’ (s. 24(1) of the Torts Ordinance), he would have a good defence. Case law has also recognized that the absence of certain defences in the Torts Ordinance does not constitute a negative arrangement, and for this reason, hypothetically, had the appellant raised another necessity argument, he would have a defence against the claim (CA 187/52 Halperin v. Mayor of Tel-Aviv [15]; CrimA 2/73 Sela v. State of Israel [16]). Does the appellant’s argument that he committed his act because of a mental illness also constitute a defence?

31. As the lower courts said, in English law (which has precedence in interpreting the Ordinance — s. 1 of the Torts Ordinance; CA 711/72 Meir v. Directors of the Jewish Agency for Israel [17]) — there are, as we said above, three approaches on this question: (1) the approach of Lord Denning, who does not regard mental illness as a defence at all; (2) the approach of Lord Esher, according to which a uniform standard should be adopted for liability in criminal and tort law (the M’Naghten rules); (3) the intermediate approach of Judge Stable, according to which the tortfeasor does not need to understand the moral significance of his act, but there is a need for a minimal mental element of control (i.e., it was held that someone who acts in a state of automatism is not liable in tort). This third approach — which was also proposed by Prof. Englard (Englard et al., The Law of Torts, at p. 136) — seems to me the proper one: it is accepted in English law (Halsbury’s Laws of England (fourth edition, 1999), vol. 45(2) 334) and in also in the case law of the Israeli courts that have considered the matter (Yasmin v. Kahalani [35]; CC (Hf) 751/93 Stern v. Z.E. Gilad Security Co. Ltd [39], per Judge Grill; CC (TA) 118124/01 Jarfi v. Somech [40], per Judge Kedar). There will be a defence in tort only in a case of automatism. This provides a balance that seeks to be fair to everyone. On the one hand, the courts are open to victims seeking compensation; on the other, someone who was in a state where he had no control whatsoever over his actions is not held to be liable.

32. This approach is also consistent with the Property Law Memorandum. Section 374 of the Memorandum proposes the following innovative provision:

‘No person shall be liable in tort for an act if he was unable to choose between doing it and refraining from doing it, because of a lack of control over his movements with regard to that act. The provisions of this section shall not apply when the tortfeasor voluntarily caused himself to be in a state of lack of control as aforesaid’ (emphasis added).

An exemption will therefore be given when the defendant is deprived of free choice as a result of a lack of control over his body movements. The following is stated in the explanatory notes:

‘A new provision dealing with states of automatism and similar situations in which the tortfeasor has lost his freedom of choice. The wording of the first part of the section is similar to the wording of the first part of s. 34G of the Penal Law, 5737-1977.’

In other words, if we adopt the terminology of the Penal Law, with the necessary changes, the defence provided in s. 34H (‘insanity’), with its two alternatives ((1) ‘lacks any real ability to understand what he is doing or the impropriety in his act’; (2) ‘lacks any real ability… to refrain from committing the act’), does not constitute a defence in tort; only compliance with the conditions provided in s. 34G (‘lack of control’) constitutes a defence in tort. This proposal helps us to interpret the existing law, in the manner described above.

33. (1) I should also say that from the viewpoint of tort law it makes no difference whether the lack of control is the result of a physical illness or a mental illness.

(2) Criminal law makes a distinction between a lack of control that originates in a mental illness and a lack of control that originates in a physical illness or an external factor, but this is because an insane automatism is included in the defence provided in s. 34H of the Penal Law (CrimA 382/75 Hamiss v. State of Israel [18]; Y. Kedmi, On Criminal Law — The Penal Law (first part, 2004), at p. 473). In civil law, which as we have said only contains a defence of a lack of control, the question of its origin is of no significance. The distinction between ‘sane automatism’ and ‘insane automatism’ is not simple from either a scientific or a legal viewpoint: assuming that the level of lack of control is identical, why should a distinction be made between a lack of control originating in a mental illness and a lack of control originating in a physical defect? Moreover, it would appear that today there is no agreed scientific distinction between sane automatism and insane automatism as there was in the past (see H.J.F. Korrell, ‘The Liability of Mentally Disabled Tort Defendants,’ 19 Law & Psychol. Rev. 1 (1995), and O.C. Dark, ‘Tort Liability and the “Unquiet Mind”: A Proposal to Incorporate Mental Disabilities into the Standard of Care,’ 30 T. Marshall L. Rev. 169 (2004); for an example of this relationship between body and mind, see A. Bleich, Z. Solomon, Mental Disability: Medical, Research, Social, Legal and Rehabilitative Aspects (2002), at pp. 296-316). Today the distinction between body and mind has become unclear, and it is possible to regard certain illnesses, which used to be regarded as mental illnesses, as defects or impairments of brain functioning, i.e., organic defects.

34. I therefore propose to my colleagues that, while insanity (within the meaning of the term in the Penal Law) does not constitute a defence in tort law, a lack of control over the body’s movements does constitute a defence, irrespective of whether it originates in a mental illness, a physical illness or a physical coercion by another person.

On opposing considerations

35. The decision is not a simple one. In view of the legal finding in the criminal sphere, upon which we have relied, that the mental illness from which the appellant suffered deprived him of the possibility of refraining from committing the act (and it should not be forgotten that on the same occasion the appellant also murdered his own infant daughter), it is not easy to hold that he is ‘at fault’ (s. 64 of the Torts Ordinance) and that he is liable to pay compensation:

‘Undoubtedly there is some appearance of hardship, even of injustice, in compelling one to respond for that which, for want of the control of reason, he was unable to avoid; that it is imposing upon a person already visited with the insufferable calamity of mental obscurity, an obligation to observe the same care and caution respecting the rights of others that the law demands of one in full possession of his faculties. But the question of liability in these cases, as well as in others, is a question of policy…’ (Shapiro v. Tchernowitz [43], citing Cooley on Torts).

36. Judges Amit (pp. 34-38) and Elron (p. 70) considered three main criteria that have been proposed in foreign case law (see Breunig v. American Family Insurance Company [44]) in favour of imposing liability in tort on mentally ill persons:

‘(1) Where an innocent person has caused damage to an innocent person, the person who caused the damage should be liable for the damage. (2) To increase the supervision exercised by persons responsible for mentally ill persons… (3) The concern that the claim will be misused’ (p. 70).

I will not deny that each of these arguments has been met by counter arguments that support the opinion of Judge Willner. But in my opinion these three arguments have validity.

37. The second consideration mentioned above, namely increasing the standard of supervision required of persons responsible for mentally ill persons, is relevant both to the subject in general and to our specific case, and I shall therefore address this first. Indeed, a main reason for imposing liability in tort on mentally ill persons is to create an incentive for increased supervision and for the adoption of precautionary measures both by the mentally ill person and by those around him. This consideration justifies the imposition of liability in cases where there were prior indications and it was possible to take precautionary measures before the event. In Breunig v. American Family Insurance Company [44] it was said:

‘We think the statement that insanity is no defense is too broad when it is applied to a negligence case where the driver is suddenly overcome without forewarning by a mental disability or disorder which incapacitates him from conforming his conduct to the standards of a reasonable man under like circumstances. These are rare cases indeed, but their rarity is no reason for overlooking their existence and the justification which is the basis of the whole doctrine of liability for negligence, i.e., that it is unjust to hold a man responsible for his conduct which he is incapable of avoiding and which incapability was unknown to him prior to the accident.’

In that case it was held that the driver (the defendant) had forewarning, which required her to adopt precautions and to refrain from driving. The court expressly said that ‘The cases holding an insane person liable for his torts have generally dealt with pre-existing insanity of a permanent nature.’ This is also how Landes & Posner analyzed the judgment:

‘The difference between Breunig and the usual insanity case is that when insanity comes on and causes injury without warning, there is no opportunity to avoid the injury by restraining the insane person. In Breunig, however, the plaintiff (sic) was in a position to alter her activity level before the accident occurred’ (W.M. Landes & R.A. Posner, The Economic Structure of Tort Law (1987), at p. 130).

38. Landes and Posner also proceed to analyze the case with regard to torts that require intent. According to them, there is no justification for a sweeping defence of insanity in every case of a mental illness, but only in cases where the insanity ‘is of such a nature as to prevent the injurer from forming the requisite intent’ (p. 183). After proposing a possible economic analysis supporting this determination, according to their general approach to the law, the authors write:

‘This analysis is incomplete, however, because it neglects the effect of liability in giving an incentive to the custodians and beneficiaries of the insane person's wealth to prevent him from committing torts. This is the traditional rationale for making the insane liable. An ingenious accommodation is suggested by the forewarning cases such as Breunig… lack of forewarning shows that liability would have no deterrent effect either on the insane person himself or on those who have an interest in conserving his wealth. Although Breunig is an accident case rather than an intentional tort case, from an economic standpoint the question of the liability of the insane has little to do with whether the insane person is charged with an intentional or an unintentional tort’ (p. 183, emphasis added).

Thus we see that approaches that seek to impose liability in tort on mentally ill persons, and even approaches that do not give significant weight to fault, hold that it is not effective or fair to impose liability on someone who could not have taken any precautions to prevent the harm. On the other hand, it is right, effective and just to impose liability in cases where it was possible to take precautions before the event. This distinction brings the question closer to the classic tort of negligence, and it is possible to apply it with regard to parties who owe a duty of care relating to mentally ill persons.

The ‘between two innocents justification’

39. Let us now turn to consider the first consideration that was proposed, which I shall express as follows: ‘Where one innocent harms another, the one who caused the harm should pay for it.’ Even if we assume that the appellant is ‘innocent,’ and this is not my opinion, this proposition should be considered. Ultimately the three judges in the District Court addressed what is referred to in the literature as ‘The between two innocents justification’ (Judge Amit, at p. 34; Judge Willner, at p. 53; Judge Elron, at p. 86), with reference to both the economic position of mentally ill persons in general (Judge Willner), and the position of the appellant in the case before us (Judge Elron). Admittedly, in Israeli law, as in common law generally, liability in tort is based on fault; a doctor who has not been negligent is not liable in tort even though he is the cause of the harm (s. 35 of the Torts Ordinance), and the same is true with regard to someone who makes a false representation in the belief that he is speaking the truth, or without any intent to mislead (s. 56 of the Torts Ordinance), or with regard to a person who carries out an assault without intent (s. 24 of the Torts Ordinance), or with regard to a child who causes harm (s. 9(a) of the Torts Ordinance).

40. The ‘between two innocents’ argument, especially when it is used to impose liability on mentally ill persons, has been criticized for many decades on the ground that it is incompatible with a legal system in which the law of torts is based on fault (F.H. Bohlen, ‘Liability in Tort of Infants and Insane Persons,’ 23 Mich. L. Rev. 9 (1924), at p. 17; R.M. Ague, ‘The Liability of Insane Persons in Tort Actions,’ 60 Dick. L. Rev. 211 (1956) at p. 221; H.J.F. Korrell, ‘The Liability of Mentally Disabled Tort Defendants,’ 19 Law & Psychol. Rev. 1 (1995)). Judge Amit held that ‘the damage does not lie at a point equidistant between the appellant (the tortfeasor) and the respondent (the victim), but it lies closer to the appellant, as the person who caused the respondent’s damage’ (p. 34). Judge Amit also cited the remarks of Justice Berinson in FH 12/63 Leon v. Ringer [19]:

‘This should be weighed in the scales of justice, not merely from the viewpoint of the tortfeasor, but also from the viewpoint of the victim, and then it is very possible that the scales will actually tip in favour of the victim. It is he who has been injured and someone should be held responsible. Is there any justification for transferring the burden from the shoulders of the tortfeasor, who committed the tortious act, to the shoulders of the victim, who is entirely innocent… Even from a social viewpoint, it is more appropriate that the tortfeasor should be fully liable for the damage, since he, unlike the victim, is usually insured. In this way the damage is shouldered by the public and not by the individual’ (Leon v. Ringer [19], at p. 713; emphasis added).

Judge Amit also cited FH 15/88 Melech v. Kornhauser [20]. These remarks of Justice Berinson make sense to me and I agree with them; in my opinion, this is the main argument that supports imposing liability in our case. As Justice Haim Cohn said in Justice and Law, at p. 98: ‘… “saving the world” begins with “small steps”.’ Indeed, in the two cases cited above it was first proved that the negligent tortfeasor was at fault, and the question of the scope of liability only arose afterwards; in other words, in both cases it was expressly held that the fact that the tortfeasor was at fault justified imposing on him the burden of proof (Melech v. Kornhauser [20]), and the ‘eggshell skull’ damage (Leon v. Ringer [19]), and therefore these cases do not contain a proof that liability should be imposed without fault (see also CA 6216/03 Nasser v. M.H.M. Ltd [21]). But it cannot be denied that the ‘between two innocents’ argument reflects a basic sense of justice that has interpretive weight. This argument has been accepted and continues to be accepted in courts in the United States. Indeed, Judge Willner referred to National Insurance figures that show that the economic position of mentally ill persons is very difficult, and she expressed a concern that imposing liability in tort will make their economic position even worse, and even result in them being kept apart from society (see E.J. Goldstein, ‘Asking the Impossible: The Negligence Liability of the Mentally Ill,’ 12 J. Contemp. Health L. & Pol’y 67 (1995), at p. 85; Landes & Posner, ‘The Economic Structure of Tort Law,’ supra, at pp. 128-130). Moreover, Landes and Posner argue that in a case where the mentally ill person cannot be deterred, it is more effective to impose the damage on the victim, since he is able to minimize it both by means of insurance and by adopting other measures (p. 183). On the other hand, legal literature has also raised an argument that holding mentally ill persons liable will actually further their integration in society, inter alia because those who come in contact with them and are injured by them are guaranteed compensation (see S.I. Splane, ‘Tort Liability of the Mentally Ill in Negligence Actions,’ 93 Yale L. J. 153 (1983)). Personally, I am of the opinion that the scales are tipped in favour of accepting the ‘between two innocents’ argument, within the scope of legal policy. I doubt — and in this I must differ from Judge Willner — whether imposing liability will significantly harm the community of mentally ill persons and their integration in society, which is highly desirable. I would like to believe that this is not the case; we need to fight the stigmas and prejudices of society that isolate mentally and physically ill persons; I had the opportunity of addressing this in the context of establishing therapeutic communities for drugs victims, when I was cabinet secretary and also served as the chairman of the council of the Israel Anti-Drug Authority. It was not easy to overcome the prejudices of towns near which therapeutic communities were established, but it transpired that it was possible even if people need to be persuaded. But we are not dealing with this in the present case. Tort cases are thankfully few, and ultimately the scales are tipped in favour of the innocent victim; and in so far as insurance is concerned, it can be assumed that among both potential tortfeasors and potential victims there are some who are capable of buying insurance and others that have relatives who are capable of buying insurance for them. Finally I will point out that a proper framework might be found in s. 829 of the German Civil Code that was cited in the opinion of Judge Elron (‘Duty to Compensate for Equitable Reasons’); I believe that such an arrangement requires a legislative amendment, and this ought to be considered.

Misuse of the argument

41. The third argument that was presented in favour of imposing liability in tort on mentally ill persons was ‘the concern that the claim of insanity would be misused’; this concern arises inter alia from the ‘concern — or perhaps the fear — that psychiatry is a less precise science than other fields of medicine’ (Judge Amit, at p. 37). It will be remembered that Judge Amit disagreed with Prof. Englard’s approach and argued that even a defendant who acts while in a state of automatism deriving from a mental illness should not be exempt from liability in tort. According to Judge Amit, we should adopt the distinction made by Justice Agranat between ‘insane automatism’ and ‘sane automatism’ (Hamiss v. State of Israel [18], at pp. 734-735). This distinction, according to which only persons suffering from physical illnesses are exempt from liability, makes it unnecessary for the court to consider the intricacies of psychiatry. I think that this is a problematic distinction. It is not superfluous to point out that both Judge Willner and Judge Elron disagreed with the distinction between a lack of control arising from a physical illness and a lack of control arising from a mental illness.

42. I do not accept the argument that imposing liability on mentally ill persons means that while a tortfeasor with a physical disability will be judged according the standard of the ‘reasonable disabled person’ (see Stern v. Z.E. Gilad Security Co. Ltd [39], at p. 331; CA 5604/94 Hamed v. State of Israel [22], at p. 507, per President Barak), i.e., according to his disability, the mentally ill person will be judged according to the general standard of the ‘reasonable person’ and his special status will thereby be ignored (P.J. Kelley, ‘Infancy, Insanity and Infirmity in the Law of Torts,’ 48 Am. J. Juris. 179 (2003); Shapiro v. Tchernowitz [43]). The picture, as we have seen, is more complex.

43. One of the policy considerations is the difficulty in proving the mental illness:

‘One exception to the average-man rule that the law has generally refused to recognize is insanity. Considerations both of information costs and of activity level support this result. Proof of insanity is difficult; even more difficult is establishing the relationship between insanity and care’ (Landes & Posner, The Economic Structure of Tort Law, at pp. 127-128).

Indeed, proving mental illness, even today, is in many cases more difficult than proving a physical defect. There are many borderline cases involving different kinds of mental disturbance, but I would not place the emphasis on ‘information costs’ as a justification for imposing liability and fault, and ultimately I would not rely specifically on this argument. In my opinion, the ‘between two innocents’ argument is pivotal in a legal system where the appellant is ‘innocent.’ We are speaking of a judicial policy decision, of a sense of justice. The law seeks to compensate a victim who is innocent of all fault, and to restore him, in so far as possible, to his position at the time of the assault — at least from an economic viewpoint — since his body may have been injured in such a way that it will never be fully healed.

44. Were the issue a simple one, we would not spill so much ink over it. Ultimately it seems to be right and proper that we adopt the assumption ‘that the purpose of the law of torts is to grant the injured person a remedy for the damage that he suffered, and the purpose of the law of compensation is, therefore, to negate the consequences of the tortious act’ (A. Barak, ‘Assessing Compensation for Personal Injury,’ 9 Tel-Aviv University Law Review (Iyyunei Mishpat) 243 (1983), at p. 248). This purpose, and the principle of fairness that underlies it, lead to the aforesaid conclusion that only a lack of control over the movements of the body, whatever its cause, constitutes a defence in tort. In the case before us, the appellant does not fall within the scope of this definition, and therefore I am of the opinion that the judgment of the District Court should be allowed to stand.

45. I have also found no reason to intervene in the quantum of damages. Appeal courts do not tend to intervene in these findings if they do not deviate from what is customary and reasonable, which is the position in this case (CA 4733/92 Haifa Chemicals Ltd v. Hawa [23]; CA 418/74 Amamit Insurance Co. Ltd v. Weinberger [24]). I also do not think that the request to reduce the compensation on the grounds of ‘subjective fault’ should be accepted. If the approach that I have proposed is accepted, the appellant does have liability in tort, and the amount of the compensation should be determined according to the damage that the respondent suffered.

46. If my opinion is accepted, the appeal will not be allowed. In the circumstances, we are not making an order for costs.

 

 

Justice M. Naor

I agree. I am also of the opinion that ultimately, in the absence of an unequivocal statutory provision, the question is one of legal policy. Indeed, persons suffering from a mental illness deserve our sympathy and it is very important to integrate them into society (see and cf. CA 8797/99 Anderman v. District Appeal Committee [25]). But in choosing between the interest of the mentally ill person and the interest of an innocent victim, I too am of the opinion that the latter prevails. Recognizing liability will also result in relatives taking better care of mental patients.

 

 

Justice E. Arbel

The question in the case before us is the liability of a mentally ill person in tort generally, and with regard to the tort of assault in particular.

1.    I have read the opinion of my colleague Justice Rubinstein, in which he has thoroughly considered all the different aspects of the question. In the factual sphere, my colleague assumed that at the time of the act the appellant controlled the movements of his body, but lacked any capacity to refrain from doing the act. In the legal sphere he held that all the elements of the tort of assault are satisfied in this case, and this includes the element of intent, which he interpreted as volition but not as free will. Of the three approaches expressed in English law with regard to the question of whether a mentally ill person who commits a tort as a result of his illness is entitled to a defence, he adopted the intermediate approach of Judge Stable, which was also proposed by Professor Englard, according to which a defendant will not be held liable only when he is deprived of free will as a result of a lack of control over the movements of his body. In view of the aforesaid, my colleague proposed that the appeal should be denied, and that the appellant should be held liable in tort to compensate the respondent.

Let me first say that ultimately I agree with the outcome in my colleague’s opinion and with his assumption that, as a rule, a mental illness in itself does not give rise to a sweeping defence against liability in tort. This conclusion is founded on the purpose of the law of torts and the difference between the law of torts and criminal law. Notwithstanding, I would like to suggest a possibility that there may be cases in which a tortfeasor who is mentally ill will be exempt from paying compensation on account of various considerations of justice. Let me explain the main points of my position.

2.    The question of the liability of a mentally ill person in tort is a delicate and complex question. It involves legal principles and questions of liability in tort, which are frequently discussed but remain unresolved until today. I should say at the outset that in my opinion the question ought to be resolved by the legislature, and I will discuss this later in my remarks. In any case, now that the matter has come before us, we have no alternative but to decide it on the basis of the relevant policy considerations, taking into account the purpose of existing legislation and particularly the circumstances of the case before us.

3.    In White v. White [45], Lord Denning discussed the development of the law of torts, and how the focus of the issue of liability was transferred from the question of fault to the question of who ought to be liable for the damage. In that case Lord Denning found that the idea of compensation, rather than the idea of fault, is what lies at the heart of liability in tort, and in view of this, he held that a person will be liable in tort even if as a result of a mental illness he did not know what he was doing or whether it was morally wrong:

‘In the case of torts such as trespass and assault, it is .... settled that a person of unsound mind is responsible for wrongful conduct committed by him before he was known by the injured person to be of unsound mind, even though it has since become apparent that such conduct was influenced by mental disease which was unrecognised at the time: and this is so, even if the mental disease was such that he did not know what he was doing or that what he was doing was wrong: because the civil courts are concerned, not to punish him, but to give redress to the person he has injured...’ (White v. White [45], at pp. 58-59).

This approach makes it possible to impose liability in torts on the basis of the principle of compensation, even without considering the question of fault, and it is a broader approach that that of my colleague, who, as I have said, adopted the intermediate approach of Judge Stable (see also I. Englard, A. Barak, M. Cheshin, The Law of Torts — General Theory of Torts (second edition, G. Tedeschi ed.. 1977), at p. 133 (hereafter: Englard et al., The Law of Torts)).

I am aware that a sweeping determination that the question of the tortfeasor’s fault should be ignored, which is Lord Denning’s approach, is inconsistent with the Israeli Torts Ordinance [New Version], 5728-1968, both in view of the requirement of fault that appears in chapter four of the Torts Ordinance and in view of the disparity between tortfeasors who cause damage as a result of involuntary acts, who are liable in tort, and tortfeasors who cause damage as a result of necessity or force majeure, who have a defence in tort (see Englard et al., The Law of Torts, at p. 137). At the same time, with regard to liability in tort that is imposed on mentally ill persons, I tend to agree with Lord Denning, in view of the conceptual proposition underlying his approach that the focus should be moved from the question of fault to the question of compensating the injured party. This idea, as we shall see below, is also evident in the Israeli law of torts, as developed in legislation, case law and legal literature. Let me explain.

4.    Even though there is an assortment of purposes underlying the law of torts (deterrence, punishment, dispensing justice and spreading the loss), it is clear that precedence is given — and in my opinion rightly so — to the purpose of compensating the injured party and restoring him to the position he was in prior to the tort that was perpetrated against him. The following remarks are most apposite in this regard:

‘… this assumption is like a golden thread in case law — that the purpose of the law of torts is to grant the injured person a remedy for the damage that he suffered, and the purpose of the law of compensation is, therefore, to negate the consequences of the tortious act, by restoring the injured person, in so far as it is possible to do so, to the same position that he would have been in at the time of the tortious act, had it not been for the tortious act. Compensation therefore seeks to achieve a remedial purpose’ (A. Barak, ‘Assessing Compensation for Personal Injury,’ 9 Tel-Aviv University Law Review (Iyyunei Mishpat) 243 (1983), at p. 248).

The purpose of the law of torts is therefore to give the injured party a remedy for the damage that he suffered, and compensation is intended to negate the consequences of the tortious act. The basis for this approach is found in the understanding that communal life in human society makes individuals mutually interdependent and requires them to restrain the pursuit of their own interests by showing consideration for the interests of others. This restraint finds expression in legal arrangements that determine the limits of what is permissible and what prohibited; such is the case in criminal law, and it is also the case in constitutional law and the law of torts. In so far as the law of torts is concerned, when the prohibited act amounts to a tort, the ‘classic’ response is to impose liability on the tortfeasor to pay compensation to the injured party. The purpose of the aforesaid obligation is to compensate the injured party for the damage that he suffered by restoring him to his original position in financial terms (see, for example, CA 357/80 Naim v. Barda [26], at p. 766; FH 15/88 Melech v. Kornhauser [20]; CA 2034/98 Amin v. Amin [27], at p. 85 {631}; CA 8673/02 Forman v. Gil [28], at p. 381; CA 11152/04 Pardo v. Migdal Insurance Co. Ltd [29]; Englard et al., The Law of Torts, at p. 25).

5.    It is not superfluous to point out that the ‘remedial’ purpose reflects, inter alia, the distinction between the law of torts and criminal law. The law of torts concerns the relationship between one individual and another, which is based on an assumption of equality, and its main purpose, as aforesaid, is to compensate the injured party and restore him to his original position. By contrast, criminal law concerns the relationship between the sovereign state and the individual, and the purposes of the criminal prohibitions are to give warning of the danger that they present to the values that are essential for the existence and proper development of society, to deter persons of limited social consciousness from violating them, and to lay down the criteria for society’s response to any failure to observe them. A criminal offence de facto constitutes a conscious conflict between the individual and organized society (see S.Z. Feller, Criminal Law (vol. 1, 1984), at pp. 62-63). Only when a person has criminal capacity, i.e., only when he is capable of comprehending the significance of his conduct and when he knows how to choose between taking action and refraining from taking action, is it possible to speak of a conscious conflict between him and society, and only then is he liable for criminal sanctions (see Feller, Criminal Law, at p. 63). It follows that criminal law inherently and essentially focuses on the defendant, and he is also the subject of the main sentencing considerations: deterrence, punishment and rehabilitation. There is no sense in convicting someone of committing a criminal offence when he could not refrain from committing the criminal act, or when he did not understand what he was doing or that his conduct was wrong, since when the defendant has no ability to choose between different ways of acting and between different objectives, his act does not reflect a readiness to violate the social value that the law is intended to protect (see, for example, CrimA 118/53 Mandelbrot v. Attorney-General [3]; CrimA 186/55 Mizan v. Attorney-General [30]; CrimA 2947/00 Meir v. State of Israel [31], at p. 643; Y. Bazak, The Criminal Liability of the Mentally Disabled (third edition, 1985), at p. 11)). Against this background, we can understand the provision of s. 34H of the Penal Law, 5737-1977, which exempts a mentally ill person from criminal liability.

There is a rule that any balance between values reflects the context in which it is made, and when the context changes, so too does the actual balance (see LCA 5768/94 ASHIR Import, Manufacture and Distribution v. Forum Accessories and Consumables Ltd [32], at p. 451). Thus, in so far as the law of torts is concerned, the different context requires a different balance, in which the emphasis is placed, as stated above, on the injured party and on the damage that was caused to him, while the question of the tortfeasor’s position, as well as his objectives and motives, is secondary and incidental, and does not lie at the heart of the case.

Moreover, criminal law may lead to the defendant being sent to prison, a consequence that no one will dispute is very serious. By contrast, in the law of torts the nature of the remedy is merely economic. Although this is likely to harm a person’s property, clearly the harm is less serious than the harm caused by depriving someone of his liberty. The court should therefore bear in mind the disgrace inherent in a criminal conviction, which is not necessarily shared by someone who is found liable in tort. The aforesaid consequences mean that greater caution needs to be taken in a criminal trial with regard to the rights of the defendant. But the sweeping exemption from criminal liability granted to mentally ill persons, which is derived from this caution, is not essential in tort law.

6.    As we have said, the main purpose of the law of torts — as distinct from the criminal law — is to ensure that, as a rule and subject to the conditions stipulated by statute, the tortfeasor will compensate the injured person for the damage that he caused him. Legislation and case law have recognized exceptions to this rule and, on the basis of various rationales, have determined cases in which the victim will not be compensated for the damage that he suffered. Thus, for example, a minor who has not yet reached the age of 12 is exempt from liability in tort (s. 9 of the Torts Ordinance). The limits and scope of these exceptions are determined in the light of the rule that requires the payment of compensation to the injured party for the damage that he suffered. The following remarks are apposite:

‘When we are speaking of borderline cases, which may, according to one construction or another, be determined in either direction, it will be right, in my opinion, to hold that within the framework of the “margin of reasonableness” of the various legal constructions we should choose the construction and the legal solution that give the victim a complete remedy for the damage that he suffered, rather than the construction that leaves the victim without compensation, even if only in part’ (Melech v. Kornhauser [20], at p. 96; emphasis added).

This guideline requires us to adopt a strict interpretation with regard to defences that may be available to the tortfeasor. In our case, a strict interpretation of this kind may lead to the conclusion that a mental illness does not necessarily provide an absolute defence to being liable to pay compensation in tort, as my colleague Justice Rubinstein has indeed held. It should be emphasized that placing the burden of compensation on the shoulders of the mentally ill person does not mean that he was morally at fault for committing the act. That is a question for criminal law. We, however, are concerned with the law of torts, which focuses on the question of the injured party being compensated by the person who caused him damage.

7.    This conclusion — that liability should be imposed on mentally ill persons — is also supported by additional considerations, which were addressed in my colleague’s opinion and in the judgments of the Magistrates Court and the District Court that were given in this case. Thus, for example, it has been held that where one innocent person causes damage to another, the one who causes the damage should be liable for it. An additional factor that tips the scales in favour of imposing liability on mentally ill tortfeasors is the concern that the public will not accept the proposition that mentally ill persons should have a sweeping exemption from liability in tort, which may result in a loss of public confidence in the legal system. Moreover, the courts have discussed the difficulty in proving mental illness, and they have held that imposing liability in tort on mentally ill tortfeasors will prevent people who have caused damage trying to have themselves wrongfully included within the definition of mentally ill persons. Moreover, there are some who regard imposing liability as aforesaid as an incentive to families and closely related persons to increase the supervision and care of mentally ill persons, in so far as this is required and circumstances allow. This has been discussed at length, and I agree with the approach underlying this and the main considerations that support it.

8.    In my opinion, the purpose of the law of torts necessitates imposing tortious liability on a mentally ill person, even if the tort was committed as a result of his illness, and even if it is proved that he could not have refrained from doing the act. Notwithstanding, I do not rule out a decision according to which, on the basis of various considerations of justice, there will be certain cases in which it will be right to exempt a mentally ill tortfeasor from paying compensation, out of a sincere concern for the community of mentally ill persons and in view of the importance with which I regard their integration into the community (see and cf. CA 8163/05 Hadar Insurance Co. Ltd v. A [33]; A. Porat, ‘The Law of Torts: the Tort of Negligence According to the Case Law of the Supreme Court from a Theoretical Perspective,’ Israel 5756 Law Annual 373 (1996), at p. 391; regarding the emphasis being placed on considerations of justice, see, for example, ss. 827-829 of the German Civil Code; s. 54 of the Swiss Federal Code of Obligations; and s. 489-2 of the French Civil Code; it should be noted that the premise  is that there is an exemption from tortious liability). Thus, for example, granting a mentally ill tortfeasor an exemption from paying compensation should, in my opinion, be considered when it has been proved that the injured party can be compensated by a third party. If, after the mentally ill person committed a tort, it transpires that it was possible to take steps to prevent the tort, but these were not taken, it is possible that one of the parties who was liable to take those steps may be found liable to compensate the injured party on the grounds of negligence (see, for example, CA 350/77 Kitan Ltd v. Weiss [34]; CC (Jer) 8636/99 Gordon v. State of Israel [40]), and the mentally ill tortfeasor may be granted a corresponding exemption from such liability.

It should be noted that where considerations of justice support exempting a mentally ill tortfeasor from the duty to compensate the injured party, this does not need to be a complete exemption. The court should consider a possibility of a partial or reduced liability to pay compensation, where the amount of the reduction will be determined according to the circumstances of the concrete case and the degree of control that the tortfeasor had over his actions, as shown by the professional opinions that will be submitted. In any case, it does not appear that our case falls within the scope of such cases.

I should add that it is possible to examine various possibilities of financing compensation for victims, in those cases where the mentally ill tortfeasor is not liable to pay any compensation at all or is liable to pay only partial compensation. Thus it is possible to consider establishing a national compensation fund that will shoulder the burden of compensating victims in such cases. I would point out that it is well-known that national compensation funds have been recognized by the legislature in various spheres. Thus, for example, a fund was established under the Road Accident Victims Compensation Law, 5735-1975, for victims of road accidents. The establishment of a compensation fund as aforesaid raises many questions, including the method of determining entitlement to receive payment from the fund, and the way in which the fund will be financed. In any case, if and when a decision is made to introduce a compensation mechanism in this matter, it may be assumed that a thorough debate of the issue will be held in order to examine the various issues that will arise and consider the relevant ramifications and the difficulties posed by each option.

9.    As I have said, I support the result in Justice Rubinstein’s opinion, according to which the appellant is liable in tort for his actions. Notwithstanding, I should point out that my colleague’s opinion raises certain legal questions that have not, in my opinion, been resolved. Thus, I have not found any justification for the distinction, which has also been adopted in s. 374 of the Property Law Memorandum, 5766-2006 (hereafter: the Memorandum), which provides that ‘while insanity (within the meaning of the term in the Penal Law) does not constitute a defence in tort law, a lack of control of the body’s movements does constitute a defence’ (para. 34 of Justice Rubinstein’s opinion). This approach de facto adopts the approach of Justice Stable in Morriss v. Marsden [47], according to which liability in tort requires a minimal mental element of control, which Prof. Englard interpreted as ‘the mental act by means of which a person makes himself the cause of his conduct’ (see Englard et al., The Law of Torts, at pp. 134-138). I have found no sufficient rational, ethical or social justification for distinguishing between someone who acts without any control over his body movements, who is entitled to a defence, and a mentally ill person who acts in consequence of his illness, who is not entitled to such a defence, and for distinguishing between ‘sane’ automatism (‘automatism that deprives a person of control’) and ‘insane’ automatism (‘automatism that deprive a person of will’). In both cases a person is deprived of the ability to refrain from committing the act (see in this regard CrimA 382/75 Hamiss v. State of Israel [18]; Mandelbrot v. Attorney-General [3], at p. 298 {137-138). Cancelling the distinction between ‘sane’ automatism and ‘insane’ automatism prima facie indicates a need to compare the laws relating to each. In any case, I do not think that this difficulty undermines the result of my colleague’s opinion, since in my opinion there is in any case a basis for finding the appellant liable in tort. I therefore leave this question to be considered at a later date.

10. Before closing, I would like to point out that, as I said above, in view of the importance of the matter and in view of the lack of clarity on this subject, I am of the opinion that the question before us is a matter that should be addressed by the legislature. The legislature’s silence on this matter is particularly notable in view of the exemption from liability given to mentally ill persons in the criminal sphere (s. 34H of the Penal Law), as well as in view of the exemption from liability in tort given to minors (s. 9 of the Torts Ordinance). Much has been written in judgments of the lower courts on the legislature’s silence with regard to the question of the liability of mentally ill persons in torts: does this silence constitute a negative arrangement or is it a lacuna? There is no need to discuss the matter further. The issue has been addressed in the Memorandum (see ss. 374 and 389), but I am of the opinion as aforesaid that it involves certain difficulties. The question of the liability of mentally ill persons in tort is a complex legal question, and it touches upon certain disciplines that are outside the law, such as medicine and the social sciences. Formulating a policy on this question requires a clarification and discussion of the relevant issues after hearing the appropriate professionals, including experts in medicine, education, social science and law, and any other persons who may be relevant. I am sure that this work was done before the Memorandum was prepared, and it may be assumed and hoped that the matter will be considered in depth once again after the final draft is tabled in the Knesset.

 

 

Appeal denied.

22 Kislev 5768.

2 December 2007.

 

 

[1]    Translator’s note: the Israeli Tort Ordinance uses one word, which is translated here as ‘assault,’ to include both the English common law concepts of battery (unlawful physical contact) and assault (threat of unlawful physical contact). 

In the Supreme Court, sitting as the Court of Civil Appeals

CA 10064/02

and counter-appeal

Before:                                    The honourable Justice E. Rivlin

                                                            The honourable Justice A. Grunis

                                                            The honourable Justice S. Joubran

 

 

The appellants (the respondents in the counter-appeal):

 

1.         Migdal Insurance Company Ltd

2.         Avner Road Accident Victims Insurance Association Ltd

 

v.         

 

The respondents (the appellants in the counter-appeal):

 

1.         Rim Abu-Hana

2.         Nadia Abu-Hana

 

Appeal and counter-appeal of the judgment of the Haifa District Court of 17 October 2002 in CC 621/98, which was given by the honourable Justice H. Pizam.

 

Date of the hearing: 21 Sivan 5765 (28 June 2005)

 

For the appellants (the respondents in the counter-appeal): Adv. Bezalel Sagi.

For the respondents (the appellants in the counter-appeal): Adv. Shai’r Metanis.

 

Facts: The respondent was injured in a road accident when she was five months old. The district court, in assessing her damages for loss of earning capacity, took into account the respondent’s ethnic origin and her socio-economic background. The proper method of calculating this head of damage is the focus of the dispute between the parties.

 

Held: Damages for an injured minor's loss of earning capacity should be computed according to the presumption that the minor would have earned the equivalent of the national average wage, regardless of sex, religion, ethnicity, etc.. This presumption can be rebutted only when there is evidence of considerable weight, showing that there is a high probability that the minor would have entered a certain profession in the future.

 

 

Legislation cited:

Equal Employment Opportunities Law, 5748-1988.

Equal Remuneration for Female and Male Employees Law, 5756-1996.

National Health Insurance Law, 5754-1994.

Road Accident Victims Compensation Law, 5735-1975, s. 4.

Special Education Law, 5748-1988.

 

Israeli Supreme Court cases cited:

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

[2]     CA 2061/90 Marcelli v. State of Israel, Ministry of Education and Culture [1993] IsrSC 47(1) 802.

[3]     CA 140/00 Estate of Ettinger v. Company for the Reconstruction and Development of the Jewish Quarter [2004] IsrSC 58(4) 486; [2004] IsrLR 101.

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

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

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

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

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

[9]     CA 4932/97 Asraf v. HaMagen Insurance Co. Ltd [1999] IsrSC 53(5) 129.

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

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

[12]   CA 571/78 Abu-Karat v. Wiener and Tiko [1980] IsrSC 34(4) 639.

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

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

[15]   CA 209/53 Weizman v. Zucker [1954] IsrSC 8(2) 1412.

[16]   CA 169/77 Schwartz v. Lieberman [1978] IsrSC 32(3) 561.

[17]   CA 746/81 Nahalat Yehuda Local Council v. Zada [1985] IsrSC 39(1) 19.

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

[19]   CA 849/80 Burka v. Burka [1982] IsrSC 36(3) 739.

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

[21]   CA 801/89 Cohen v. Shabam [1992] IsrSC 46(2) 136.

[22]   CA 61/89 State of Israel v. Eiger [1991] IsrSC 45(1) 580.

[23]   CA 142/89 Gamliel v. Oshiot Insurance Co. Ltd [1990] (3) TakSC 683.

[24]   CA 5118/90 Basha v. State of Israel [1993] (3) TakSC 438.

[25]   LCA 2531/98 Goldschmidt v. Fogel [1998] (2) TakSC 1317.

[26]   CA 612/84 Margalit v. Margalit [1987] IsrSC 41(3) 514.

[27]   CA 3375/99 Axelrod v. Tzur-Shamir Insurance Company [2000] IsrSC 54(4) 450.

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

[29]   CA 2978/90 Israeli Car Insurance Pool v. Ben-Yeda [1993] (1) TakSC 599.

[30]   CA 1134/98 Mugrabi v. Maimon [2001] IsrSC 55(1) 729.

[31]   CA 228/91 Malca v. Sanwar [1994] (2) TakSC 2055.

[32]   CA 5052/92 Schick v. Matalon [1994] (3) TakSC 2119.

[33]   CA 1027/90 Clal Insurance Co. Ltd v. Batya [1993] (4) TakSC 619.

[34]   CA 92/87 Danan v. Hodeda [1991] IsrSC 45(2) 604.

[35]   CA 7358/95 HaSneh Israel Insurance Co. Ltd v. Zuckerman [1996] (3) TakSC 23.

[36]   CA 5118/92 Altripi Lelahahoudat Alaama Ltd v. Salaima [1996] IsrSC 50(5) 407.

[37]   CA 2781/93 Daaka v. Carmel Hospital [1999] IsrSC 53(4) 526; [1998-9] IsrLR 409.

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

[39]   CA 8216/99 Estate of Friedman v. Rapaport [2001] (2) TakSC 15.

[40]   CA 572/67 Perser v. Ezra [1968] IsrSC 22(1) 397.

[41]   HCJ 6126/94 Szenes v. Broadcasting Authority [1999] IsrSC 53(3) 817; [1998-9] IsrLR 339.

[42]   CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [1992] IsrSC 46(2) 464.

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

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

[45]   CA 1433/98 Hemed v. Ahlam [1999] (3) TakSC 1754.

[46]   CA 802/03 Bashir v. Israeli Phoenix Assurance Company Ltd (unreported).

[47]   HCJ 6845/00 Niv v. National Labour Court [2002] IsrSC 56(3) 663.

[48]   HCJ 4541/94 Miller v. Minister of Defence [1995] IsrSC 49(4) 94; [1995-6] IsrLR 178.

[49]   CA 750/79 Klausner v. Berkovitz [1983] IsrSC 37(4) 449.

[50]   CA 702/87 State of Israel v. Cohen [1994] IsrSC 48(2) 705.

[51]   CA 718/91 Suliman v. Wafa, DinSC 27 481.

[52]   CA 9117/03 Zohar v. Bardweil [2004] (3) TakSC 3060.

[53]   CA 4597/91 Afikim Kibbutz v. Cohen [1996] IsrSC 50(2) 111.

[54]   CA 6431/96 Bar-Zeev v. Mohammed [1998] IsrSC 52(3) 557.

 

Israeli District Court cases cited:

[55]   CC (Jer) 385/94 Binder v. Sun (unreported).

[56]   CC (Hf) 1844/00 Ali v. Daud (unreported).

[57]   CC (Jer) 1533/98 Turman v. Israel Car Insurance Pool (unreported).

[58]   CC (Jer) 653/90 Aylin v. Cohen (unreported).

[59]   CC (Jer) 2074/00 S. v. Knesset Yehuda School (unreported).

[60]   CC (Jer) 3341/01 Dumer v. Avital (unreported).

[61]   CC (BS) 351/89 Difalla v. Azbarga [1995] (2) IsrDC 500.

[62]   CC (TA) 2024/01 Batran v. Tryg-Baltica [2004] (3) TakDC 2319.

[63]   CC (Hf) 1274/98 Nujidat v. Estate of Nujidat [2005] (1) TakDC 1805.

[64]   CC (Hf) 1969/87 Yaakobi v. Mimni [2000] (2) TakDC 8544.

 

American cases cited:

[65]   United States v. Bedonie, 317 F. Supp. 2d 1285 (D. Utah, 2004).

[66]   Hughes v. Pender, 391 A. 2d 259 (D.C. 1978).

[67]   Athridge v. Iglesias, 950 F. Supp. 1187 (D.D.C. 1996).

[68]   Croley v. Republican Nat’l Comm., 759 A. 2d 682 (D.C., 2000).

[69]   Clavier v. Roberts, 783 So. 2d 599 (La. Ct. App. 2001).

[70]   Washington Metro. Area Transit Authority v. Davis, 606 A.2d 165 (D.C. 1992).

[71]   Fontenot v. Laperouse, 774 So. 2d 278 (La. Ct. App. 2000).

[72]   Hoffman v. Sterling Drug, Inc., 374 F. Supp. 850 (D. Pa. 1974).

[73]   Bulala v. Boyd, 239 Va. 218 (Va. 1990).

[74]   Drayton v. Jiffee Chemical Corp., 591 F.2d 352 (6th Cir. 1978).

[75]   Reilly v. United States, F. Supp. 976 (1987).

[76]   Reilly v. United States, 863 F. 2d 149 (1st Cir. 1988).

[77]   Caron v. United States, 548 F.2d 366 (1st Cir. 1976).

[78]   Vincent v. Johnson, 833 S.W. 2d 859 (Mo. 1992).

[79]   Wheeler Tarpeh-Doe v. United States, 771 F. Supp. 427 (1991).

[80]   Greyhound Lines, Inc. v. Sutton, 765 So. 2d 1269 (2000).

[81]   Classic Coach, Inc. v. Johnson, 823 So. 2d 517 (Miss. 2002).

 

Australian cases cited:

[82]   Rigby v. Shellharbour City Council [2005] NSWSC 86.

[83]   Grimsey v. Southern Regional Health Board [1997] TASSC 103.

[84]   Diamond v. Simpson (No.1) [2003] NSWCA 67.

[85]   Rotumah v. New South Wales Insurance Ministerial Corporation [1998] NSW Lexis 1714.

[86]   Relly v. Fletcher, unreported, 22 October 1997.

 

Canadian cases cited:

[87]   Walker v. Ritchie [2003] O.J. No. 18 (S.C.J.) (QL).

[88]   Parker v. Richards [1990] B.C.J. No. 1824.

[89]   Webster v. Chapman [1996] 6 W.W.R. 652.

[90]   Rewcastle Estate v. Sieben (2001) 296 A.R. 61.

[91]   Crawford (Guardian ad litem of) v. Penny [2003] O.J. No. 89.

[92]   Arnold v. Teno [1978] 2 R.C.S. 287.

[93]   D (Guardian ad litem) v. F [1995] B.C.J. No. 2693.

[94]   Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital [1994] 1 S.C.R. 114.

[95]   Cherry (Guardian ad litem of) v. Borsman (1992) 70 B.C.L.R. (2d) 273.

[96]   Mulholland (Guardian ad Litem of) v. Riley Estate (1995) 12 B.C.L.R. (3d) 248.

[97]   Gray v. Macklin, 2000 A.C.W.S.J. 513443.

[98]   Audet (Guardian ad litem of) v. Bates (1998) B.C.J. No. 678 (S.C.) (QL).

[99]   Tucker (Public Trustee) v. Asleson (1991) 86 D.L.R. (4th) 73.

[100] Terracciano (Guardian ad litem of) v. Etheridge (1977) 33 B.C.L.R. (3d) 328.

[101] MacCabe v. Westlock Roman Catholic Separate School District (1999) 226 A.R. 1.

[102] Tucker v. Asleson (1993) 24 B.C.A.C. 253.

[103] Chu (Guardian ad litem of) v. Jacobs [1996] B.C.J. No. 674.

[104] Shaw (Guardian ad litem of) v. Arnold [1998] B.C.J. No. 2834.

[105] Cho v. Cho [2003] 36 R.F.L (5th) 79 (Ont. Sup. Ct. J.).

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

 

English cases cited:

[107] Taylor v. Bristol Omnibus Co. [1975] WLR 1054 (CA).

[108] Joyce v. Yeomans [1981] 1 WLR 594.

[109] Jones v. Lawrence [1969] 3 All ER 276.

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

 

Jewish law sources cited:

[111] Babylonian Talmud, Nedarim 81a.

 

 

Judgment

 

            Justice E. Rivlin:

 

            1.         The respondent, who is the appellant in the counter-appeal, was injured in a road accident when she was only five months old. The District Court assessed her damage, including her expected loss of earnings in the future. With regard to this head of damage, a fundamental dispute arose between the parties. It concerns the right of minors who have been injured as a result of a tort to receive damages for the loss of their future earning capacity irrespective of their ethnic origin, family or gender.

 

Background

 

2.    Rim Abu Hana, the first respondent in the appeal and the appellant in the counter-appeal (hereafter: ‘the respondent’ or ‘Rim Abu Hana‘), was injured as aforesaid in a road accident when she was five months old. The claim for damages was filed through the second respondent, the respondent’s mother and natural guardian (hereafter: ‘the mother’), in accordance with the Road Accident Victims Compensation Law, 5735-1975. The hearing before us — like the hearing before the trial court — focused solely on the question of the sum of damages.

The Haifa District court (the honourable Vice-President H. Pizam) determined the respondent’s total permanent medical disability to be 44%. Since the respondent had a disability of 5% that did not result from the accident, the court saw fit to calculate her medical disability on a 95% basis, and it therefore found that the disability caused by the accident amounted to 43.7%. The court awarded the respondent a sum of NIS 91,160 for pain and suffering, a global sum of NIS 100,000 for past and future medical expenses, and a sum of NIS 35,000 for the expenses of travelling to receive medical treatments. For the serious neurological injury that the respondent suffered, as a result of which — in the court’s estimation — she ‘would need help in her studies and in acquiring life skills, as well as general help for her disability,’ the court awarded her further global damages in a sum of NIS 400,000.

 

3.    For the head of loss of earning capacity, after it heard the arguments of the parties on this issue, the trial court awarded the respondent a global amount, explained its decision in the following manner:

‘In my opinion, we should not go to extremes in reducing the damages due to the plaintiff on account of her being a resident of the village of Reineh, or because most of the women in the village do not earn money outside their homes, since living conditions may change, and the accepted trend around the world is to make the living conditions and livelihood of men and women as equal as possible (CA 685/79 Atrash v. Maalof [1], at p. 630).

Yet, since there is almost no data on which it is possible to assess the plaintiff’s earning opportunities, it is preferable that I should award global damages for this head of damage as well, in view of the fact that there are, as of yet, no indications of the plaintiff’s fields of interest, of what will be her education, her path in life and her training (ibid. [1], at p. 630).

There is no alternative to determining the estimated loss of her earnings on a global basis, in which I am taking into account the national average wage, the average wage in the village of Reineh, the plaintiff’s socio-economic background and the tension between the retirement age, which is 65, and the possibility of employees of various kinds to continue to earn a salary until the age of 70, and the capitalization of the aforesaid.’

The trial court included all of these factors in its assessment and determined the damages for the loss of the respondent’s earning capacity to be NIS 500,000. It also awarded her NIS 85,000 for loss of pension and social benefits. The court deducted the disabled child benefit paid to the respondent by Social Security, in the sum of NIS 41,721, from the total amount of damages. Notwithstanding, the court was of the opinion that in view of the respondent’s medical disability, it appeared that she would not be entitled to additional benefits from the National Insurance Institute, and therefore it refused to deduct any further amount or to freeze a part of the damages.

This judgment is the subject of the appeal and the counter-appeal.

 

4.    The appellants claim that part of the respondent’s disability is the result of neglectful treatment, which may severe the causal link between that part of the disability and the accident. Consequently, and in view of the evidence concerning the respondent’s condition, the appellants are of the opinion that the rate of her medical disability should be reduced. The appellants dispute the amount of damages awarded to the respondent due to the loss of earning capacity in the future. They claim that the amount awarded for this head of damage de facto, albeit not expressly, reflects an actuarial computation on the basis of the national average wage. The use of the national average wage as a criterion for estimating the respondent’s earning potential is, in the appellants’ opinion, inappropriate; according to them, where there is objective evidence and real indications on the basis of which it is possible to determine the real earning potential of the injured person, these are preferable, since they reflect the true damage that was caused and realize the principle of restitution. The appellants believe that the trial court erred when it ignored the proven information regarding respondent, including ‘the personal and familial background, the employment patterns in the sector to which the respondent belongs and, above all, the average wage figures of the village of Reineh, where the respondent lives.’

The appellants further claim that the damages awarded to the respondent for ‘loss of pension and social benefits’ should be cancelled, since there is no certainty that she would indeed have entered the labour market. The damages for ‘assistance with her school work and general assistance’ is, in their opinion, too high as well, since the respondent does not require assistance in her day-to-day functioning beyond that which she is entitled to from public authorities under the Special Education Law, 5748-1988. In addition, the appellants believe that the respondent can obtain the medical treatment she needs, if indeed she needs any, via public healthcare, under the National Health Insurance Law, 5754-1994, and therefore there was no justification to award her damages for this head of damage. According to the appellants, the trial court also erred when it denied their plea to deduct or to temporarily withhold from the damages awarded to respondent the capitalized value of the benefits to which the respondent is likely to be entitled to from Social Security when she becomes an adult on account of her disability.

 

5.    The respondent (the appellant in the counter-appeal) is of the opinion that the damages she was awarded for loss of earnings are less than she would have been awarded had the court relied on an actuarial computation based on the national average wage. According to her, one of the considerations that were taken into account by the court — the average wage in the village where she lives — is an irrelevant consideration, inconsistent with the principle of equality. The respondent further claims that the magnitude of her functional disability is greater than the degree of her medical disability, and that the court should have calculated her loss of earnings until the age of 70. The respondent argues against of the low amount of damages, in her opinion, of NIS 400,000 which she was awarded for third party assistance. She argues that this amount does not reflect the assistance that she has needed since the accident and until today and the increase in her need for assistance and supervision. The respondent further argues against the amount of damages that she was awarded for her increased mobility expenses. As to the deduction of the Social Security benefits, the respondent is of the opinion that ‘only if the court had computed her full loss of earnings in the future on the basis of the national average wage, or at least on the basis of 75% of the national average wage, would there be a basis for considering a deduction of the value of the general disability benefit,’ and that ‘only if the plaintiff’s claims regarding the computation are accepted should the defendants’ claims regarding the deduction be accepted as well.’

 

6.    As aforementioned, at the heart of the dispute between the parties lays the issue of how to compute the damages for loss of future earnings. This involves a further question of fundamental importance which must be addressed. In this matter I am of the opinion that the counter-appeal is to be allowed. I have also found that we should order part of the damages to be temporarily withheld on account of the anticipated disability benefit,  as agreed by the parties  in light of the change made in the computation of the loss of earnings. As to the other issues, I do not believe there is any ground for intervention. The district court reached its conclusions on the basis of the evidence laid before it. I have not found that its conclusions, especially those that are based on a global estimate, and except for those related to the loss of future earnings, require intervention.

 

Loss of earnings: general principles

 

7.    The head of damage related to the loss of earnings is often a substantial component of the damages awarded for personal injury. When computing the compensation for this head of damage, the court is called upon to estimate the earning capacity of the plaintiff before the accident, examine the severity of his injury and its effect on his earning capacity, and award an amount that reflects the disparity, created by the accident, between the earning capacity before the accident and the earning capacity that the plaintiff has left after the accident and as a result thereof. Determining the amount of damages for this head of damage requires the court to take into account facts as well as predictions: facts with regard to the abilities, circumstances and occupations of the plaintiff before the accident and before the judgment, and predictions with regard to the damage that he or she is expected to suffer in the future. These predictions may also regard the past, for example: what would the plaintiff's level of earnings have been during the period between the accident and the judgment, had it not been for the accident? And with regard to the future, the court should examine what the salary the injured person could be expected to earn during the period between the date of the judgment and the plaintiff's retirement age. These predictions, including the prediction regarding the actual retirement age, are what led the Court to say that —

‘When calculating compensation for loss of earning capacity in the future, we seem to ourselves to be walking with Alice in Wonderland, a land where guesses and suppositions are facts, and hopes and wishes are reality. We are required to discover the secrets of the future — a future that will occur and a future that will not occur — even though we are not prophets nor even the sons of prophets’ (per Justice M. Cheshin in CA 2061/90 Marcelli v. State of Israel, Ministry of Education and Culture [2]).

Assessing the damage for the head of loss of earning capacity is therefore not simple. Often it is quite speculative. "Human capital" does not have a market value. The court is required, here as in other heads of damage, to consider two balance scales — an external balance scale and an internal balance scale. On one pan of the external balance scale lies a weight marked ‘had not,’ which examines the position that the plaintiff would be in had the accident not occurred. On the other pan of the external balance scale lies a weight marked ‘as a result of,’ which examines the position of the plaintiff as a result of the accident. The purpose of compensation is to balance the scales. To this end, one must also take into account the position of the internal balance scale, which is an offshoot of the external ‘as a result of’ pan. On one pan of the internal balance scale lays a weight marked ‘loss.’ One must examine the losses of the plaintiff as a result of the accident. On the other pan lays a weight marked ‘gain.’ One must examine the benefits and the ‘gains’ that the plaintiff has received — if any — as a result of the accident. Although it realizes the principle of restitution, this "balancing" process may seem problematic, since it would be difficult to accept that the victim "benefits" from the accident. But the limits of compensation — in money — for injuries that cannot always be compensated in money, require us to consider the losses and the ‘gains.’ Weighing the loss and the ‘gain’ that were caused to the plaintiff as a result of the accident provides a complete picture of the plaintiff's position after the accident, which can be weighed against the position he would have been in, had the accident not occurred. Only then is it possible to award the plaintiff an amount of damages that will correct the imbalance caused by the accident (CA 140/00 Estate of Ettinger v. Company for the Reconstruction and Development of the Jewish Quarter [3], at pp. 510-511 {118}).

 

8.    The balance scale imagery merely serves to illustrate one important purpose of compensation in the law of torts, namely, Restitutio In Integrum. Admittedly, Restitutio In Integrum in its literal sense – restoring to wholeness - is impossible, but the goal of achieving this purpose expresses the aspiration of restoring the position of the plaintiff, in so far as this can be done by monetary means, to the position he would have been in had it not been for the tortious act (see A. Barak, ‘Assessing Compensation for Personal Injury: The Law of Torts As It Is, and As It Should Be,’ 9 Tel-Aviv University Law Review (Iyyunei Mishpat) 243 (1983), at pp. 249-251). This view is based, inter alia, on the approach of corrective justice, according to which the law of torts is intended to compensate for a wrong-doing of one individual to another, while emphasising the personal liability of the tortfeasor to compensate the plaintiff for the conduct that caused the injury (for a discussion of the corrective justice approach, see J.L. Coleman, ‘The Practice of Corrective Justice,’ in Philosophical Foundations of Tort Law (David G. Owen (ed.), 1995) 53; E.J. Weinrib, The Idea of Private Law (1995); G.P. Fletcher, ‘Fairness and Utility in Tort Theory,’ 85 Harv. L. Rev. 537 (1972)). The idea is that the plaintiff's damage — rather than the conduct or the financial means of the tortfeasor — is decisive in determining the amount of damages. ‘The damages are determined in accordance with the damage, for which liability is imposed. At the heart of the compensation lies the damage, which should be estimated and quantified. The needs of the injured party — and not the financial means of the tortfeasor — are what lie at the heart of assessing damage in tort’ (CA 357/80 Naim v. Barda [4]). Compensation is a ‘remedial’ relief, not a punitive one. It is intended to remedy or compensate for damage (Barak, ‘Assessing Compensation for Personal Injury,’ supra, at p. 246). These fundamental principles guide should also guide us when awarding compensation for the head of loss of earning capacity.

 

9.    Compensation in the law of torts is based on an individualistic approach.

‘The assessment of damage and the award of compensation in tort law are based on an individualistic approach. The law concerning the assessment of damage in torts is not based on a statutory ceiling or on a bottom limit for the amount of damages… the law focuses on the individual damage that occurred to the injured person, for which the tortfeasor is responsible, and the need to return the injured person to his original position’ (Naim v. Barda [4]).

Therefore, the plaintiff's loss of earnings is determined according to his individual earnings. In special statutory arrangements, such as the Road Accident Victims Compensation Law, a ‘tariff’ system accompanies the imposition of strict liability; this tariff system sets a ceiling for the individualistic assessment. It should be noted that below this ceiling the individualistic approach continues to apply, in so far as compensation for loss of earnings is concerned (see s. 4 of the Road Accident Victims Compensation Law, and compare with the determination of non-pecuniary damages, which depends wholly on objective-technical standards — CA 235/78 Hornstein v. Ohavi [5]; CA 2801/96 El-Al Israel Airlines Ltd v. Yifrach [6]).

We should preface our remarks by saying that the individualistic approach does not diminish the legitimacy of relying on ‘working assumptions’ in the appropriate cases, as those are merely presumptions of fact that have been formulated, inter alia, on the basis of experience,  statistical data, legal realities and economic realities. Among these presumptions are the presumption of continuity with regard to the injured person’s type of occupation and place of employment, the presumption of dependency of children and spouses — both male and female —on another for subsistence and livelihood, the presumption of the age for entering the labour market and the presumption of retirement age, the presumptions concerning ordinary life expectancy and the factual presumptions concerning the ‘standard’ level of earnings. This last presumption brings us closer to the matter at hand.

 

The loss of a child’s earnings

 

10. When a person is injured in an accident while he is still a minor, or before entering the labour market, he is entitled to compensation for the expected reduction in his earning capacity – as a working adult would be. The compensation for this head of damage, both for the adult-plaintiff and for the child-plaintiff, is determined according to the difference between what the plaintiff would have earned had it not been for the accident, and what he can earn with his injury (CA 79/65 Israel Steel Enterprises Ltd v. Malca [7]). Indeed, the compensation for this head of damage is given for the loss of earning capacity and not for the loss of earnings. This approach leads to the conclusion that even a plaintiff who has not yet begun working (a child) or a plaintiff who has stopped working before the accident (a housewife) is entitled to compensation, despite the fact that at the time of the injury he or she did not have any actual earnings. Notwithstanding, the determination — in the present — of the value of the earnings that the plaintiff would have produced from his earning capacity, had it not been for the accident, depends on the tangible earnings that the injured person would have received by using his capacity in practice (per President Barak in CA 237/80 Barsheshet v. Hashash [8]). According to this approach, the loss of earning potential is a type of damage that merits compensation, provided that there is a possibility, which is not negligible or completely speculative, that this potential would have been realized. Earning capacity is regarded as an asset that belongs to its owner and reflects his ‘economic horizon’ (see Estate of Ettinger v. Company for the Reconstruction and Development of the Jewish Quarter [3], at pp. 518-519 {129}). Harm to this asset entitles the injured person to damages. This is true for an adult who has established himself in his work and had been uprooted from it by an accident, and it is equally true for a child who has been deprived of the possibility of establishing himself or herself in the labour market.

 

11. The problem is that the theoretical position with regard to the entitlement of a child to compensation for expected loss of earning— a position that is not under debate— encounters difficulties when it comes to assessing the damages. The usual difficulty inherent in the need to resort to predictions and estimates is magnified, first and foremost, because in the case of a child the court cannot rely on any ‘work history’ or on proven facts with regard to the plaintiff's position in the labour market. Lord Denning addressed this difficulty in Taylor v. Bristol Omnibus Co. [107]:

‘At this very young age these [calculations – E. R.] are speculative in the extreme. Who can say what a baby boy will do with his life? He may be in charge of a business and make much money. He may get into a mediocre groove and just pay his way. Or he may be an utter failure.’

Lord Denning went on to say that:

‘It is even more speculative with a baby girl. She may marry and bring up a large family, but earn nothing herself. Or she may be a career woman, earning high wages.’

We will return later to the question of differences between a baby boy and a baby girl.

It is therefore unsurprising that it has been held that, in so far as a minor is concerned, ‘the assessment of the expected damage in the future and the determination of the proper compensation, naturally involve a lack of certainty, since it is difficult to estimate whether and how the damage will develop and what effect it will have on the plaintiff's life’ (CA 4932/97 Asraf v. HaMagen Insurance Co. Ltd [9], at pp. 136-137). ‘Indeed, in the case of a child, a difficulty may arise in measuring the extent of the loss of earnings, since details about the earning potential of the plaintiff are often lacking, and the court finds itself trying to find its way in the dark’ (Estate of Ettinger v. Company for the Reconstruction and Development of the Jewish Quarter [3], at p. 543 {157}). The younger a minor is, the greater the court’s difficulties are in assessing the loss of a his or hers future earnings (per Justice Y. Malz in CA 311/85 Efraimov v. Gabbai [10], at p. 194), as the minor has not yet chosen the course of his or her professional training, and since his professional future is shrouded in darkness (see also CA 634/88 Attiya v. Zaguri [11], at p. 101).

In General, that when the court seeks to compute the loss of a minor's earning capacity, it seeks to realize the goal of restoring the status quo, but it needs to contend with the fact that the nature of that "status quo" is largely unknown. The court must reconcile the tension between the principle of corrective justice and the evidential ambiguity as to what actually requires correcting.

 

Global or Actuarial Calculation?

 

12. Israeli case law has found several ways of dealing with the evidential ambiguity concerning the future earnings of minors on the one hand, and the need to realize the purpose of Resitutio ad Integrum on the other. In this the case of minors is not unique; the competing approaches are no different from those adopted in the general law of compensation, namely the conventional (actuarial) calculation approach and the global estimate approach (for a general discussion, see CA 571/78 Abu-Karat v. Wiener and Tiko [12]; CA 722/86 Youness v. Israel Car Insurance Pool [13], at pp. 877-878).

Initially, the court tended to resolve the problem of evidential ambiguity by awarding a global sum. Thus, in CA 335/59 Reichani v. Tzidki [14], it was held that:

‘Naturally, the difference between the earning capacity of the appellant before the accident and his earning capacity after the accident cannot be proved, since the appellant was not yet able to earn any money before the accident because of his age. It follows that all that can be proved is the fact that as a result of the accident, the plaintiff’s earning capacity was reduced to a certain degree, as compared with the average earning capacity of a healthy person; and in view of the evidence that is brought to prove this general matter the court must assess the damage to the best of its judgment… The learned judge was entitled, in my opinion, to do what he did and to determine the amount of damage as he did: it is nothing more than an estimate, and we are unable to say whether this estimate is better or worse than any other possible estimate’ (ibid. [14], at p. 166).

The Court has reiterated this position — which supports the awarding of damages for the loss of a minor's earning capacity on the basis of a global estimate — many times (see, e.g., CA 209/53 Weizman v. Zucker [15]; CA 169/77 Schwartz v. Lieberman [16], at pp. 570-571; Atrash v. Maalof [1]; see also CA 746/81 Nahalat Yehuda Local Council v. Zada [17], at pp. 24-25; CA 326/88 Zimmerman v. Gavrielov [18]; and in England see Joyce v. Yeomans [108]; Jones v. Lawrence [109]). In another case, in the early 1980s, the Court wrote:

‘As aforementioned, the calculation of the loss of future earnings was based on the salary of a housekeeper. The trial court was evidently influenced by the fact that several of the appellant’s friends did indeed work in housekeeping. There is merit in the appellant's council's claim that this fact does not necessarily indicate that his client would pursue the same occupation, and therefore he proposes that the computation be based on the national average wage. Indeed, it is sometimes customary to make such a calculation, especially in the absence of specific precise information. But even then a proper basis of fact is required, whereas in our case there are no facts at all with regard to the social background, the disposition, the ability, etc., and any attempt to rely on calculations will be even less than a guess, and in practice it will be nothing more than an arithmetic exercise without any foundation. In the absence of any facts, and in light of the objective difficulties in predicting what the future holds for a girl over a period of decades, during which she may leave the labour market as a result of marriage, motherhood, etc., it would appear that the circumstances in this case justify awarding her a global sum for this head’ (CA 849/80 Burka v. Burka [19], at p. 749).

Thus we see that the plaintiff's gender has also led the court, in the past, to award damages in the way of a global estimate, since it regarded this element as a factor that creates uncertainty with regard to earning capacity.

 

13. Yet, over the years we have seen, in various contexts, an ever-increasing use of actuarial computations. Detailed and reasoned computation was preferred to the vague path of global calculation. In one case it was said that if —

‘… it is possible, according to the facts proven during the trial, to arrive at a detailed, reliable and sensible computation, it is preferable to compute the damages in the conventional manner, since such a calculation has the advantage of being convincing, transparent and clear to everyone. On the other hand, when the proven facts are insufficient, any computation will be artificial and will involve guesswork and a degree of gambling, and therefore the global calculation should be preferred’ (CA 30/80 State of Israel v. Asher [20], at pp. 792-793).

It can be observed that Justice T. Or recognized, in as early as the middle of the 1980s, that ‘in recent years, there can perhaps be seen a trend to recommend the conventional method of computation in those cases where there is sufficient information needed for computing the loss in this way’ (Youness v. Israel Car Insurance Pool [13]; cf. CA 801/89 Cohen v. Shabam [21], at p. 148; see also, the opinion of Justice M. Cheshin in Marcelli v. State of Israel, Ministry of Education and Culture [2], at p. 822). It is self-evident that the actuarial method of computation provides the parties with the tools to understand the basis for the assessment. It is also consistent with the need for the existence of effective appellate scrutiny.

This trend did not skip the computation of damages for the loss of earnings of injured minors. On the face of it, the evidential ambiguity and the vague reality that characterize the employment future of a minor tip the scales in favour of the global calculation method, which in the past was used in many cases where facts were lacking. Indeed, this method has not been completely abandoned. However, the court has preferred, in a host of judgments, to follow the path of the actuarial computation whenever possible, despite the lack of a probative foundation. The factual uncertainty with regard to the future level of earnings of a minor who has not yet entered the labour market, and the lack of relevant facts from the past that may cast light on the future have been replaced by the factual presumption that relies on the figure of the national average wage (D. Katzir, Compensation for Personal Injury (fifth edition, 2003), at p. 579). This was discussed by Justice E. Goldberg in one case:

‘The principle that has been determined in case law is that in computing the loss of a child’s earning capacity, the national average wage constitutes the basis for the computation…

Choosing this basis is the result of the uncertainty as to which occupation the minor would have chosen had it not been for the accident, and how much he would then have earned. Determining the loss of a minor’s earnings is an area full of guesswork and suppositions, one in which we are required to practically foresee a future that will now never be realized. Therefore a uniform, stable and solid criterion was chosen, namely the national average wage table, which makes the consideration of the case simpler and prevents speculations… according to which we are required to clear the fog and predict specifically which path the minor would have taken had it not been for the accident’ (CA 61/89 State of Israel v. Eiger [22], at p. 591).

Similar remarks were made by Justice T. Or:

‘Indeed, there are cases in which the courts resort to assumptions or presumptions even with regard to the earning capacity of a plaintiff in an action for personal injury. This is done, for example, in the case of a child who is injured in an accident, when it cannot be known which occupation he would have chosen upon reaching adulthood, and what would have been his earning capacity in the occupation that he chose for himself. In such a case, there is in practice no possibility of proving the child’s earning capacity had it not been for the accident, and without clear and convincing indications of a different earning capacity, the policy of relying on the rate of the national average wage as a measurement of the child’s earning capacity is a necessary, albeit not optimal, one’ (CA 142/89 Gamliel v. Oshiot Insurance Co. Ltd [23]).

Justice D. Dorner summarized the matter as follows:

‘Indeed, in those cases where the court has no facts for determining the earning capacity of a minor, and when there are no reasons to depart from the general rule, the national average wage should be used as a proper measurement for determining the earning capacity’ (CA 5118/90 Basha v. State of Israel [24]).

The national average wage table— ‘as known on the date of the judgment from the publications of the Central Bureau of Statistics’ (LCA 2531/98 Goldschmidt v. Fogel [25]) — has therefore become the central pillar in computing the loss of a minor's earnings (see also CA 612/84 Margalit v. Margalit [26], at pp. 518-519; CA 3375/99 Axelrod v. Tzur-Shamir Insurance Company [27]; CA 778/83 Estate of Sarah Saidi v. Poor [28]; CA 2978/90 Israeli Car Insurance Pool v. Ben-Yeda [29]; see also Croke v. Wiseman [110]). Thus the court only resorts to awarding global damages in exceptional cases. This rule has also been applied to young people, who are just starting out their way in life, and are injured before they chose a defined career path (CA 1134/98 Mugrabi v. Maimon [30], at pp. 736-737; CA 228/91 Malca v. Sanwar [31]; see also CA 5052/92 Schick v. Matalon [32]). This is a factual presumption that is based, as aforesaid, on experience, but also on normative considerations.

 

14. The premise, therefore, is that damages for the loss of a minors’ earning capacity are based on the assumption that the minor would have earned the national average wage, had it not been for the accident. The question before us today concerns the nature of the circumstances that allow the court to depart from the factual assumption that the level of earnings would have been the national average wage. In particular, the question is whether it is possible to do so by means of alternative statistical data that relates to a particular group or sector of the population, or whether it may only be done on the basis of specific facts relating to the specific minor who was injured?

There is no doubt that where the information regarding the injured person is sufficient to allow an individual actuarial computation, the court will tend to prefer such a computation to relying on the presumption of the national average wage. It should be noted that various approaches have been heard in this Court with regard to the nature and quantity of the evidence required to justify a departure from the presumption. Justice Goldberg was of the opinion that what is needed is information that can indicate to a near certainty the occupational future of the minor had it not been for the accident (CA 1027/90 Clal Insurance Co. Ltd v. Batya [33]). Justice D. Levin was of the opinion that the existence of an ‘additional specific fact’ regarding a ‘remarkable intellectual ability or a clear tendency towards a field of employment or art…’ might lead to a correction of the computation by way of a global assessment (Estate of Sarah Saidi v. Poor [28], at pp. 633-634). Justice T. Or expressed an even more far-reaching approach. According to him, ‘special facts concerning the injured person before him, which are capable of assisting, even in a general way, in estimating the expected earning capacity to be different from the national average wage’ are sufficient in order to justify a departure from the national average wage table (CA 92/87 Danan v. Hodeda [34], at pp. 606-607). And in another case he explained that ‘when estimating the damages in torts for a period in the future, we also take into account events that may occur in the future, even if their probability is insufficient for determining them as facts according to the standard of proof required in a civil trial’ (CA 7358/95 HaSneh Israel Insurance Co. Ltd v. Zuckerman [35]). We shall state our opinion on this matter below, but now let us examine the question of whether group-based statistics — such as those relating to the sector, the ethnic group or the gender of the injured minor — or other data concerning the minor’s social status, such as his parents’ education or the socio-economic background from which he comes, are capable of justifying a departure from the criterion of the national average wage.

This is the question that we are considering today. The Israeli legal system is not the only system that has been called upon to consider it. A review of comparative law shows that the solution that has been found in different legal systems is not uniform.

 

The law in the United States

 

15. In the United States it is accepted that the loss of earning capacity is computed on the basis of statistical evidence given by expert economists and statisticians (see 2002 A.L.R. 5th 25, 2b; Illinois Jurisprudence, Personal Injury and Torts § 5:37; L.M. O’Connor & R.E. Miller, ‘The Economist-Statistician: A Source of Expert Guidance in Determining Damages,’ 48 Notre Dame L. Rev. 354 (1972)). In some states it is even a requirement to present such statistical evidence (22 Am. Jur. 2d Damages § 765). According to the prevailing approach, the damage is calculated according to statistical data brought forth by experts, who rely on various characteristics of the plaintiff, including age, gender, race, socio-economic status and education (2002 A.L.R. 5th 25, 9; O’Connor & Miller, ‘The Economist-Statistician: A Source of Expert Guidance in Determining Damages,’ supra, at p. 356). Where the matter at hand is the loss of the earning capacity of a minor who has not yet begun to pave his professional path, the experts rely even more on these characteristics, as well as on the level of education of the injured minor’s parents and siblings (for a recent survey, see M. Chamallas, ‘Civil Rights in Ordinary Tort Cases: Race, Gender, and the Calculation of Economic Loss,’ 38 Loy. L.A. L. Rev. 1435 (2005); United States v. Bedonie [65], at pp. 1315-1320). For example, in one case it was held that —

‘…[A] case such as this, involving a person who had not yet made his choice of livelihood, future lost earnings must be determined on the basis of potential rather than demonstrated earning capacity. That potential must be extrapolated from individual characteristics, such as age, sex, socio-economic status, educational attainment, intelligence and dexterity’ (Hughes v. Pender [66], at p. 263).

And in another case it was said:

‘Plaintiff presented evidence from an economics expert, Robert N. Fenili, Ph.D, as to the demonstrated earning capacity of someone of plaintiff's race, sex, age, and educational level’ (Athridge v. Iglesias [67], at p. 1192).

These remarks were cited favourably in the matter of Croley, given by the District of Columbia court in 2000 (Croley v. Republican Nat’l Comm. [68], at p. 693).

 

16. In so far as the plaintiff had demonstrated, before he or she was injured, his or her aspirations, and had succeeded in proving his ability to realize them to a sufficient degree of certainty, this will be taken into account when computing the damages. The courts emphasize, in this regard, the importance of the plaintiff's educational level and achievements in various fields, such as academics, sports, etc. (for a detailed review, see 2002 A.L.R. 5th 25). For example, it was held in one case that:

‘In addition, prior to the accident, plaintiff had expressed an interest in becoming a lawyer. In light of all of the evidence, the Court finds that, but for the accident, plaintiff most likely would have obtained at least a college degree and there is a significant probability that he would have obtained a professional degree’ (Athridge v. Iglesias [67], at p. 1193).

Cf. Clavier v. Roberts [69], at p. 610.

Even in these cases, where evidence was presented with regard to the course in life that the injured minor had wanted to follow, the courts have taken into account in their decision statistical information, including facts regarding the minor’s sex, race, family and environment, in order to calculate the probability that he would indeed have realized his aspirations (2002 A.L.R. 5th 25, 2a). For instance, the court of Appeals in the District of Columbia rejected an expert opinion according to which the deceased, who was nine years old at the time of the accident, would have acquired an academic profession, because the expert did not take into account her grades and the reports from the school in which she studied, her parents' and siblings' educational level and professions and other demographic facts. The court accepted the statistics showing that one of every two hundred women pursues professional academic studies, and held that the expert did not prove that  the deceased ‘would have been the one among 200 women to graduate from graduate school’ (see Washington Metro. Area Transit Authority v. Davis [70], at p. 178; see also, Fontenot v. Laperouse [71], at p. 285, where the lost earnings of the plaintiff were calculated on the basis of the average wage of women with the same educational level).

It should be pointed out that even when the plaintiff is an adult, courts may take into account his or her aspirations to develop and advance in life:

‘[T]he test is not the age, pre-injury occupation, nor the nature of the proposed profession, but rather the sufficiency of the plaintiff's evidence in showing his skill, likelihood of becoming a member of the profession and availability of work in that area’ (Hoffman v. Sterling Drug, Inc. [72], at p. 861).

Yet, sometimes it has been held that mere statistical evidence that does not relate at all to the personal and specific circumstances of plaintiff is insufficient to discharge the burden of proving the damage. For example, information regarding the plaintiff's social class will not necessarily suffice (see Bulala v. Boyd [73], at p. 233, and, for examples of evidence that was insufficient to discharge the burden of proof, see 2002 A.L.R. 5th 25, 10b-23b).

 

17. Alongside the prevailing approach in American case law according to which it is possible — and even desirable — to use gender- and race-based statistics in computing the lost earning capacity, it is also possible to see other approaches in American case law. A certain approach, which was adopted by the Federal Court of the Sixth Circuit in one case, does not depart from the general framework of allowing gender- and race-based statistics, but it is more sensitive. The Court allowed a defendant to show that from a statistical viewpoint the plaintiff, a black woman, is not expected to enjoy the average American standard of living, but it also took into consideration the prediction that this situation will change and that the gap between different groups will diminish:

‘While we also acknowledge defendant’s statistical evidence showing that blacks and females generally do not presently fully enjoy the benefits of the American standard of living, we recognize the likelihood that these disadvantages will have considerably less impact in the future on the ability of a black female such as Terri to obtain gainful employment comparable to that available to white males’ (Drayton v. Jiffee Chemical Corp. [74], at p. 368).

 

18. Moreover, contrary to the prevailing trend in American case law, which allows the use of statistics based on race and gender, it was also possible to find an opposite approach in American case law, even if it is less common. For instance, in so far as gender is concerned, the court of Rhode Island held in Reilly v. United States [75], that the assumption that women work less years than men is not to be accepted:

‘I cannot accept… [the] reduction of Heather’s estimated working life by 40%. The reduction relies solely on the survey of women’s work histories between 1978 and 1980… as a factual matter, I seriously doubt the probative value of such a statistic with respect to twenty first century women’s employment patterns, particularly in light of current, ongoing changes in women’s labor force participation rates’ (ibid. [75], at p. 997).

This decision of the court was approved by the First Circuit (Reilly v. United States [76]; see also, the judgment of the First Circuit in Caron v. United States [77], at p. 371, in which it was held: ‘… we see no reason to distinguish between the sexes’). Moreover, it was held that the assumption that even in the future the women's average wage will be two thirds of that of men must not be accepted:

‘This Court will not consider it error for a jury to refuse to minimize an award of lost minimum wages for an infant female on the assumption that the average wage for women in the future will still be only two-thirds of the average wage for men’ (Vincent v. Johnson [78]).

The question of making a distinction between men and women in this context also arose with regard to persons injured by the terrible terrorist attack that befell the United States on September 11, 2001. Initially, the manager of the statutory fund that was established to compensate the victims of the disaster, decided to rely on gender-based statistical information in order to calculate the compensation for each victim. However, public criticism led him to reverse his decision and to award equal compensation to men and women, according to the average wage earned by men (as distinct from the average wage in the United States; see Chamallas, ‘Civil Rights in Ordinary Tort Cases: Race, Gender, and the Calculation of Economic Loss,’ supra, at pp. 1444-1445; M. Chamallas, ‘The September 11th Victim Compensation Fund: Rethinking The Damages Element In Injury Law,’ 71 Tenn. L. Rev. 51, at pp. 69-73 (2003)).

 

19. Similarly, the question of the legitimacy of relying on race based tables in the assessment of the lost earnings was considered in Wheeler Tarpeh-Doe v. United States [79], at p. 455. In that case, a question arose as to how to determine the earning potential of a child whose father came from Liberia and whose mother was white. The court in that case rejected the use of statistics based on race or gender, and held that:

‘[I]t would be inappropriate to incorporate current discrimination resulting in wage differences between the sexes or races or the potential for any future such discrimination into a calculation for damages resulting from lost wages. The parties did not cite any precedent on this question. Accordingly, upon request by the Court… [defendant’s expert – E. R.] submitted a calculation of the average earnings of all college graduates in the United States without regard to sex or race.’

 

The Supreme Court of the State of Mississippi also expressed the opinion that statistics relating to the earnings of the injured child’s parents or the average earnings in his community should not be relied upon (Greyhound Lines, Inc. v. Sutton [80]). Relying on such statistics, according to the court, would be ‘both unfair and prejudicial.’ The court expressed the difficulties of relying on this type of statistics:

‘Who is to say that a child from the most impoverished part of the state or with extremely poor parents has less of a future earnings potential than a child from the wealthiest part of the state or with wealthy parents? Today’s society is much more mobile than in the past. Additionally, there are many more educational and job-training opportunities available for children as a whole today. We must not assume that individuals forever remain shackled by the bounds of community or class.’

Therefore the court held, in that case, that the average wage in the United States should be the basis for computing the loss of earnings for children (see also, Classic Coach, Inc. v. Johnson [81], at p. 528).

 

20. An additional milestone worthy of mentioning is the comprehensive judgment of the federal court in the State of Utah in United States v. Bedonie [65]. The court held that damages for the loss of earning capacity under the Mandatory Victims Restitution Act should be awarded on the basis of the national average wage, irrespective of race, gender and place of residence.

The conflict between the two approaches — the one that supports taking gender- and race-based statistical information  into account, and the opposing one — is also reflected in legal writing. Scholars debated, among other questions, the application of the United States Constitution in private law. A central element in this debate concerns the rules of evidence, namely, the question of the admissibility of expert testimony that is based on statistics regarding gender and race (see M. Chamallas, ‘Questioning The Use Of Race-Specific And Gender-Specific Economic Data In Tort Litigation: A Constitutional Argument,’ 63 Fordham L. Rev. 73 (1994); A. McCarthy, ‘The Lost Futures of Lead-Poisoned Children,’ 14 Geo. Mason U. Civ. Rts. L.J. 75 (2004); S.R. Lamb, ‘Toward Gender-Neutral Data for Adjudicating Lost Future Earning Damages: An Evidentiary Perspective,’ 72 Chi.-Kent L. Rev. 299 (1996)).

 

21. It can be seen, then, that the courts in the United States tend, as a rule, to award damages for loss of earning capacity in accordance with statistical information based on the sex, race and socio-economic status of the injured child, as well as on his parents’ education. But alongside the prevailing approach, another approach has developed in recent years, according to which damages should be awarded according to the national average wage, and group-based statistics should be ignored. The federal court in United States v. Bedonie [65] gave expression to the courts' somewhat surprising tendcy to, to ignore this issue altogether:

‘Dr. Randle, who has performed thousands of lost income analyses, testified that no one had ever asked him to provide race- and sex-neutral calculations in wrongful death cases…’ (ibid. [65], at p. 1315).

Chamallas explains this trend by saying that its inherent inequality is hidden behind the experts' ‘expertise’:

‘[W]hen experts rely on race or gender-based statistics to calculate tort damages, we tend not to notice the discrimination and to accept it as natural and unproblematic’ (Chamallas, ‘Civil Rights in Ordinary Tort Cases: Race, Gender, and the Calculation of Economic Loss,’ supra, at p. 1442).

However, this issue is not longer unnoticed.

 

The law in Canada

 

22. The Canadian courts frequently made – and continue to make – use of statistical data in order to determine the extent of the damage to earning potential. When the statistics before the court took into account gender or ethnicity, the result was that disparities were created in the damages awarded to children of different groups. For example, the use of gender-based statistics led to awarding lower damages to girls than to boys (J. Cassels, Remedies: The Law of Damages (2000), at pp. 138-149). The courts in Canada have greatly emphasised the social characteristics of the minor — his socio-economic background and his family's educational level, as well as his skills and achievements (see, for example, Walker v. Ritchie [87]). The assessment of the damage has also been based on the gender and ethnic identity of the plaintiffs (see Parker v. Richards [88]; Webster v. Chapman [89]), and on several occasions the damages were even reduced because of the ‘marriage contingency,’ i.e., the expected circumstances of marriage, parenthood and childbirth (see Rewcastle Estate v. Sieben [90]; Crawford (Guardian ad litem of) v. Penny [91]; for a critical discussion, see E. Adjin-Tettey, ‘Contemporary Approaches to Compensating Female Tort Victims for Incapacity to Work,’ 38 Alberta L. Rev. 504 (2000)). In one case (Arnold v. Teno [92]), a four and a half year old girl was seriously injured in an accident. The court assessed the damages for loss of earning capacity on the assumption that her future earnings would be close to the poverty line but for the accident. The court explained its decision in the following manner: ‘There can be no evidence whatsoever which will assist us in determining whether she ever would have become a member of the work force or whether she would have grown up in her own home and then married.’ This reasoning gives rise to a considerable difficulty, to say the least. As the learned Prof. Adjin-Tettey wrote in her aforesaid article, the court was not even prepared to give the injured girl the benefit of the doubt that she would have followed in her mother's footsteps, and become a schoolteacher.

 

23. Despite the fact that group-based statistics are still customarily used (see D (Guardian ad litem) v. F [93]), in recent years a more equal approach can be observed. This trend is consistent with the writings of scholars who have pointed to the need to adopt more equal standards in awarding damages for the head of loss of earnings, and to avoid relying on data based on gender, race or social status (see, for example, J. Cassels, ‘Damages for Lost Earning Capacity: Women and Children Last!’, 71 Can. Bar Rev. 447 (1992); E. Adjin-Tettey, ‘Replicating and Perpetuating Inequalities in Personal Injury Claims through Female-Specific Contingencies,’ 49 Macgill L. J. 309 (2004); C.J. Bruce, ‘MacCabe v. Westlock: The Use of Male Earnings Data to Forecast Female Earning Capacity,’ 37 Alberta L. Rev. 748 (1999); E. Gibson, ‘The Gendered Wage Dilemma in Personal Injury Damages,’ in Tort Theory (K. Cooper-Stephenson & E. Gibson (eds.), 1993) 185). There is an understanding that statistics based on gender, ethnicity or race, and which are used to assess the loss of earning capacity, are rooted in history and reflect long-abandoned discriminations and social rules of the past, whereas in present-day life the gaps are becoming increasingly narrow. It is claimed that reliance on such statistics legitimizes social injustice (Cassels, Remedies: The Law of Damages, supra, at pp. 142-143) and may also be inconsistent with the constitutional right to equality (see Gibson, ‘The Gendered Wage Dilemma in Personal Injury Damages,’ supra, and Adjin-Tettey, ‘Replicating and Perpetuating Inequalities in Personal Injury Claims through Female-Specific Contingencies,’ supra).

 

24. It is therefore possible to find in Canadian case law a more recent tendency to recognize the improvement that is expected to take place in the status of women in the labour market; indeed, in certain cases, despite the fact that the court based its decision on statistics regarding the earnings of women only, these were used as a mere starting point, and a certain amount was added to the damages to reflect the expected future increase in women’s salaries (see Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital [94]; cf. Cherry (Guardian ad litem of) v. Borsman [95]; Mulholland (Guardian ad litem of) v. Riley Estate [96]). An additional attempt to express the expected improvement in women’s earnings was made by Canadian courts through using men’s standard earnings as a starting point, and then deducting a certain amount, which reflects the time devoted to children, shorter work hours and other such ‘shortcomings’ (see Gray v. Macklin [97]; Audet (Guardian ad litem of) v. Bates [98]; Tucker (Public Trustee) v. Asleson [99]; Terracciano (Guardian ad litem of) v. Etheridge [100]; see also, MacCabe v. Westlock Roman Catholic Separate School District [101], and the discussion of this issue in C.J. Bruce, ‘MacCabe v. Westlock: The Use of Male Earnings Data to Forecast Female Earning Capacity,’ 37 Alberta L. Rev. 748 (1999), at p. 760). Justice McEachern, who wrote a dissenting opinion in Tucker, expressed discomfort in light of the use of ‘male statistics’ as a starting point for assessing the earning capacity of an injured girl:

‘This is not to say that female statistics should be used strictly, for they have rightly been found to reflect bias, but it is necessary, so far as may be possible, to use statistics which comport most closely with the essential facts of the case under consideration…

While we may strive for social justice, as it is perceived from time to time, the courts must deal with the parties who are before them, plaintiffs and defendants, on the basis of realistic predictions about the future, and not just in accordance with understandable wishes that society, in some of its aspects, were different from what it really is’ (Tucker v. Asleson [102]).

 

25. This approach, as we have said, was not universal. In certain judgments ‘male statistics’ were used regarding injured female plaintiff's who brought evidence to show that they were expected to enter into professions of a ‘male’ character (see, for example, Chu (Guardian ad litem of) v. Jacobs [103]). In other judgments the Canadian court saw fit to rely on neutral (not gender-based) data in order to determine future average earnings, while taking into account the plaintiff's expected level of education (see Shaw (Guardian ad litem of) v. Arnold [104]; Cho v. Cho [105]; see also, Walker v. Ritchie [87]). In one case, the Canadian Court expressed criticism of the very use of gender-based statistics:

‘Indeed, it may be as inappropriately discriminatory to discount an award solely on statistics framed on gender as it would be to discount an award on considerations of race or ethnic origin. I am doubtful of the propriety, today, of this Court basing an award of damages on a class characteristic such as gender, instead of individual characteristics or considerations related to behaviour…’ (Terracciano (Guardian ad litem of) v. Etheridge [100]).

In MacCabe v. Westlock Roman Catholic Separate School District [101], in which Justice Johnstone rejected the possibility of basing the compensation calculation on sex-based figures, the court considered the question of the constitutionality of making a determination based on the sex of the injured person:

‘It is entirely inappropriate that any assessment I make continues to reflect historic wage inequities. I cannot agree more with Chief Justice McEachern of the British Columbia Court of Appeal in Tucker… that the Courts must ensure as much as possible that the appropriate weight be given to societal trends in the labour market in order that the future loss of income properly reflects future circumstances. Where we differ is that I will not sanction the “reality” of pay inequity. The societal trend is and must embrace pay equity given our fundamental right to equality which is entrenched in the Constitution. The courts have judicially recognized in tort law the historical discriminatory wage practices between males and females. The courts have endeavoured to alleviate this discrimination with the use of male or female wage tables modified by either negative or positive contingencies. However, I am of the view that these approaches merely mask the problem: how can the Court embrace pay inequity between males and females? I cannot apply a flawed process which perpetuates a discriminatory practice. The application of the contingencies, although in several cases reduce the wage gap, still sanction a disparity.

A growing understanding of the extent of discriminatory wage practices and the effect of this societal inequity must lead the Court to retire an antiquated or limited judicial yardstick and embrace a more realistic, expansive measurement legally grounded in equality… The Court cannot sanction future forecasting if it perpetuates the historic wage disparity between men and women. Accordingly, if there is a disparity between the male and female statistics in the employment category I have determined for the Plaintiff, the male statistics shall be used, subject to the relevant contingencies. Once again if the contingencies are gender specific, then the contingencies applicable to males shall be used except in the case of life expectancy, for obvious reasons.’

 

The law in Australia

 

26. In Australia, the tendency of the courts is not to award an injured minor high amounts for the head of loss of earning capacity, mainly in view of the degree of arbitrariness inherent in deciding what the future would have held for a child. Australian judgments have emphasized that the older the plaintiff is, the greater the possibility of reasonably assessing the loss that he has suffered (F. Trindade & P. Cane, The Law of Torts in Australia (2001), at p. 518). In awarding damages to injured minors, the courts have taken into account the average wage and additional data such as employment and earning patterns among the members of the injured minor’s family.

With regard to injured girls, the courts have occasionally relied on women’s income-tables in Australia, while assuming that statistically, the injured girl would have children and not work, at least as long as the children are young (see Rigby v. Shellharbour City Council [82]). In other cases courts in Australia have seen fit to base the computation of lost earnings on "mixed" figures, relating to the earnings of both women and men, as they assumed that disparities in earnings will decrease in the future, when the injured girl will be old enough to join the labour market (see Grimsey v. Southern Regional Health Board [83]). The court held that:

‘Considerable strides have already been made in eliminating what most people see as an unfair and unjustifiable discrimination between the value of a man's work and that of a woman. Furthermore, as society develops, one sees a considerable blurring of the boundaries which previously distinguished male and female workers. These days men become cake decorators, and women become underground miners.’

In another case, the court of appeals held that a girl’s personal characteristics, as well as those of her parents, indicated that she would have grown up to be a "business woman", and it therefore based her loss of future earnings on the national average earnings tables (Diamond v. Simpson (No.1) [84]).

 

27. The question has also arisen with regard to Aborigine plaintiffs. One case considered the matter of an infant who was severely injured in an accident (Rotumah v. New South Wales Insurance Ministerial Corporation [85]). The defendants claimed, in reliance on statistical data, that the infant's being part of the Aborigine community had significant implications on his life expectancy and on his expected earning capacity, had it not been for the accident. The Supreme Court of New South Wales rejected their argument, even though the only judgment that it found given by a court in Western Australia which considered this question, approved the use of statistical data relating to this community, together with data relating to the injured person’s family (Relly v. Fletcher [86]). In explaining its position, the court of New South Wales said the following in Rotumah v. New South Wales Insurance Ministerial Corporation [85] (per Justice Donovan):

‘I have some doubt about whether other evidence could include statistics about sub-groups within Australia. The plaintiff's racial group in this case has already been included in the overall statistics of average weekly earnings. This reflects the equality of opportunity in this country and I do not think that the general statistics which may reflect economic opportunity should be rebutted by specific statistics of sub-groups.

…

If I took into account the general statistics of the Aboriginal race it seems to me that I would then have to take into account the general statistics of, for example, the Chinese race, the Italian race, the Irish race, the Anglo-Saxon race. I can understand the practical basis for this submission but I cannot, with due respect to their Honours in the Full court of Western Australia, accept that statistics applicable to a race can be taken into account in a matter such as this. If there were specific factors associated with the plaintiff's family which could be said to “drag down” his future income I would certainly take that into account but that, in my view, is not the evidence in this case...’.

The conclusion of the court was, as aforesaid, that general statistics, rather than group-specific statistics are the proper data to rely on.

 

Back to domestic Law - the Law in Israel

 

28. Our review of comparative law shows, on the one hand, that statistical gaps in the earnings of different population groups do sometimes affect the amount of the compensation for the head of loss of earning capacity. The social and ethnic background and the sex of an injured child sometimes are used in other countries as a legitimate index for assessing future earnings. On the other hand, there is also a growing recognition of the need to reduce the use of statistical evidence that relies on ethnic background, sex or social status. In many senses, Israeli case law is leading the way. Now the time has come to take another step forward.

 

The normative considerations

 

General

 

29. As mentioned above, Israeli case law usually bases the damages awarded for compensation for a child’s loss of earning capacity on the national average wage. This policy relies on the need for Restitutio In Integrum. Admittedly, this standardization of the compensation contradicts, prima facie, with the individualist approach that underlies the principle of restitution. However, if there is evidential ambiguity, such as in the case of a child, where the reality itself is unclear, a calculation based on statistical data of the national average wage seeks to realize the principle of restitution in the closest way possible. The factual assumption underlying the choice of statistical data is that in the absence of any other adequate evidence, it should be assumed that the injured child probably would have earned the equivalent of the national average wage.

However, if we are talking of statistical assumptions, a question arises as to which statistic ought to be used: Should we use a uniform statistic, or should we use group-based statistics? Should the court examine, with regards to each injured person (or perhaps only with regards to certain injured persons), the sector of the population to which one belongs - whether his or her gender, ethnicity, religion, and perhaps also one’s place of residence, parents’ education, socio-economic background and other similar criteria that supposedly identify the individual with a particular group, but in practice bind one to it?

 

30. It should be stated right away, that as implied beforehand according to the prevailing law in our legal system, this question is of a relatively limited scope. Thus, for example, generally there is no disagreement that the relevant statistic for the earnings of men and women should be the same. The courts frequently use the level of the national average wage, which provides a uniform single set of figures for men and women alike (see, for example, CA 5118/90 Basha v. State of Israel [24]). Thus, on a matter that has been the subject of much debate in other legal systems, and still is the subject of debate in some of them — namely the question of the use of different statistics for the different genders — the law in Israel is very clear: Israeli law does not recognize any difference between men and women when awarding compensation for loss of earning capacity (see also D. Katzir, Compensation for Personal Injury (1998), at p. 412). So is the case today, and so it will continue to be. Even in other contexts, where it could have been possible to argue for the need to rely on group-based statistics, such arguments have not been heard, and if they were heard, they were often not accepted. Thus, we must examine the distinction that is being proposed today, and similar ones, with great caution; and if the conclusion of our deliberations is, as the appellants have requested of us, that a separate calculation should be made for the respondent before us, because she is a child from a particular sector of the population, the significance of this is much wider than their request, both in the context of the anticipated earnings of children and in other contexts. The perception argued by the appellants is likely, if the spirit of their argument is to be adopted, to lead us to think that every person should have his own ‘statistical chart.’ Yet this will not be our conclusion.

 

31. We find it necessary, at the beginning of the discussion, to return to the various previous judicial opinions on the proper way of calculating the value of earnings. As mentioned, in Israel the accepted approach is that the loss of earning capacity (as opposed to the loss of earnings) is compensable damage (see Estate of Ettinger v. Company for the Reconstruction and Development of the Jewish Quarter [3]; Naim v. Barda [4]; the same is true in other legal systems — see, for example, in Canada: Andrews v. Grand & Toy Alberta Ltd. [106]). The proponents of the concrete approach held that ‘it should be shown that there is a chance, which is not merely hypothetical, that the injured person would have earned money had it not been for the accident, and that the accident harmed these earnings’ (the position of Justices Barak and Landau in Barsheshet v. Hashash [8]). Others held that a more abstract position should be adopted, according to which the value of the earnings is determined in accordance with what the injured person could theoretically earn in the future, had it not been for the accident (the position of Justice Y. Shilo in Barsheshet v. Hashash [8]). But in so far as a child is concerned, Chief Justice A. Barak emphasized that he did not see any difference between the two approaches:

‘In the vast majority of cases, it is possible to reach the same result whether one adopts the concrete approach or one adopts the abstract approach… Take the case of a child who is injured in a way that causes him functional damage. The child has not yet worked, and it is impossible to know how things would have developed in the future. According to both approaches, he is entitled to compensation for loss of earnings. According to the concrete approach, the child is entitled to compensation, since there is a chance that the functional injury will impair his earning capacity. According to the abstract approach, the child is entitled to compensation, since the capacity to work has been impaired. Even the amount of the compensation is identical in both approaches’ (ibid. [8], at p. 301).

Indeed, in general, there is no difference between the two approaches in so far as a child is concerned. This is true both with regards to the entitlement to compensation, and with regards to its calculation. It would appear that especially in the case of a child, there is an advantage to considering his earning potential (as opposed to the concrete inquiry). The choice of earning potential provides a basis for the assumption that every child — whatever his gender, race or his family’s economic status — has the potential to earn the equivalent of the national average wage. Focusing on the earning potential of the child is consistent with the principle of Restitutio In Integrum and with the individualistic approach to the law of torts. Indeed, it is precisely the individualistic approach — which focuses on the concept of the autonomy of the individual — that requires us not to shackle the injured person with the bonds of the social environment into which he was born, or in which he has grown up. It demands that we do not constrain him to an historical reality, and determine his fate on the basis of the economic or social disadvantage of persons of his gender or race, according to the statistics that might disempower him. The notion that damages are awarded for a loss of capacity — a loss of potential — is therefore inconsistent with compensation that relies on group-based statistics.

 

32. Nevertheless, as we have seen in other legal systems, sometimes the group affiliation has been taken into account when calculating compensation for loss of earning capacity. In Israel too, alongside judgments that adopted an equal approach, which we will discuss later, there are judgments which have taken into account statistics based on the plaintiff’s sectorial affiliation when calculating the compensation. For instance, in CA 5118/92 Altripi Lelahahoudat Alaama Ltd v. Salaima [36], this court approved the amount of compensation awarded by the district court to an injured child, and stated:

‘The judge’s conclusion that the plaintiff could be expected to do manual work is entirely consistent with the tendency of his family members who are all manual workers, and the limited success of the plaintiff in his studies. The judge examined the average wage that the plaintiff could have earned as a manual worker in Israel and in the territories [the area of Judaea and Samaria, E.R.], and determined that his earning potential laid between these two averages. This cannot be criticized. There is no basis to the appellant’s claim that the judge should have determined the earning capacity of the injured person solely on the basis of the average wage in Judaea and Samaria, since we are speaking of an Israeli citizen, who is fully entitled to work inside the Green Line.’

 

What is the reason underlying this result? It would appear that the main reason is as follows: the disparities of income in society are a wide-ranging social problem, and it is unjust to impose the price of equality on a random defendant who injured, for example, a plaintiff who is a girl or a member of a minority. It is also unjust — so the argument continues — to award random plaintiffs damages that exceed the earnings they could have expected in a labour market that reflects a discriminatory reality. The purpose of compensation in the law of torts, according to the argument, is restitution — real restitution, not utopian restitution — and this is what the court should do on the basis of reality, even if the reality is unpleasant.

 

In my opinion, this justification for inequitable compensation cannot stand.

 

The Story of Life, the Right to Autonomy - and Corrective Justice

 

33. Every person has the right to write the narrative of his own life. It is the individual’s autonomy, which is a part of a person’s human dignity and freedom. As Prof. Josef Raz noted:

‘The ruling idea behind the ideal of personal autonomy is that people should make their own lives. The autonomous person is a (part) author of his own life. The ideal of personal autonomy is the vision of people controlling, to some degree, their own destiny, fashioning it through successive decisions throughout their lives... A person whose every decision is extracted from him by coercion is not an autonomous person. Nor is a person autonomous if he is paralysed and therefore cannot take advantage of the options which are offered to him’ (J. Raz, ‘Autonomy, Toleration, and the Harm Principle,’ in Justifying Toleration (S. Mendus, ed., 1988), at pp. 155-156).

 

The right to autonomy was discussed by Vice-President T. Or in CA 2781/93 Daaka v. Carmel Hospital [37], where he considered a different question in the field of tort:

‘The premise for our discussion lies in the recognition that every person has a basic right to autonomy. This right has been defined as the right of each individual to make his own choices, and to act according to these choices… This right of one person to determine his life and fate encompasses all the central aspects of his life: where he will live; what will be his occupation; with whom he will live; in what will he believe. This right is central to the existence of each individual in society. It expresses the recognition of the value of each individual as a world of his own. It is essential to each person’s own definition, in the sense that all of the individual’s choices define his personality and his life.’

Admittedly, often a person acts or refrains from acting unwillingly. Fate often rocks the ship of life. When a tortuous act deprives a person of the ability to choose his own path in life, the law of torts seeks to restore the status quo, and as far as it can, restore the right that he has lost, i.e., the right to outline the narrative of his own life, a narrative of hope, a narrative of aspiration to realize that hope. This also the case when a person's earning ability is diminished due to a tortious act. This diminution lessens the possible life-paths available for each person’s choices. It restricts the horizon of possibilities that are open to him. It chains him in the bonds of disability. It restricts his ability to control the course of his life with regards to a most central aspect of human life - participation in the labour market — and realization of the freedom of vocation, which is recognized in Israeli law as a basic human right. Restoration of the status quo comes to correct the situation created as a result of the injury. It comes to negate, to the extent it can, the result of breach of equality between plaintiff and defendant according to Aristotle’s conception. In our case, it comes to restore the restricted horizon of vocational possibilities seen from the eyes of the injured person (on the conception of corrective justice in tort law, see also E.J. Weinrib, ‘Understanding Tort Law,’ 23 Val. U. L. Rev. 485 (1989)). Corrective justice, as an important goal of the law of torts, is merely one branch on a large tree that reflects the conception of universal justice — the justice that requires equality, that requires recognition of the right to autonomy, and that nourishes hope.

 

34. How, then, will the law of torts restore the status quo for a person whose ability to work has been reduced or destroyed? The law must forecast the future and estimate what his income would have been had he not been injured in the accident. In effect, the court has to sketch the map of life of the person without the injury, and compare it to the map of his life after the injury. Sometimes the injured person reveals — by word, deed, conduct or way of life — how he intended to direct his path and what could be forecast for him in the area of employment. Thus, for example, his earnings before the accident (which is often seen from tax returns filed with the tax authorities — see CA 5794/94 Ararat Insurance Co. Ltd v. Ben-Shevach [38]), the pattern of life, the horizon for promotion in his place of employment, academic studies, realizable aspiration, all these and other facts allow one to forecast what his real income would have been had the accident not occurred. In such a case, the court is able to assess the damages on the basis of the expected income but for the accident (as compared with the income after the injury) and express, by means of the compensation, the need for restoring the status quo, as the plaintiff was denied the professional career which he sought (and would have been able) to realize. Such is the actuarial calculation that relies on individual characteristics relating to the injured person, and it is usually used by the court when it awards an injured adult compensation for loss of earning capacity (see, for example, CA 8216/99 Estate of Friedman v. Rapaport [39]). However, unfortunately sometimes the injured person does not tell us anything. The path he would have trod in the future has not yet begun. The case of an infant is a conspicuous example of this. Usually, he does not manage to compose even the first chapters of his vocational life. And since he has not yet taken the first step, it is difficult for the court to predict the following ones.

When we are dealing with an infant, we look around, then, for a basis that will allow us to compensate despite the shroud of uncertainty. In practice, we seek to locate a basis that will reflect the range of possibilities that was open to the injured infant. This basis has to express not only the possibility that the infant on maturity would be found on the lowest stratum of employment, but also the possibility that in due course he would have achieved professional greatness. This basis has to encompass the range of narratives that are open to a child in Israel — every child, of whatever sex, origin, race or religion. The national average earnings is the best basis for realizing this goal. The choice of any other basis on the exclusive ground that the injured infant belongs to a certain group signifies adherence to the assumption that the vocational opportunities that exist in Israel are not open – and never will be open in the future - to a child of that group. This denial has no factual or normative ground. It might itself create a discriminatory reality. It might turn out to be a self-fulfilling prophecy. But the ‘glass ceiling’ can be broken — many have proved this to be true — and even if for some members of society this prospect is more difficult to fulfil, as it requires more diligence, dedication, ambition and a great effort — the right to chose that path still exists and cannot be taken away.

 

35. Indeed, Israeli case law, from its earliest days, has held that assuming a child's low economic position is permanent simply because of his origin, the socio-economic state of his family or his sex – is unacceptable. The Court always emphasized that the opportunity of professional success is not restricted to certain groups of society, and that we should not assume that children of poor origin are doomed to poverty. The ‘cornerstone’ of this approach was laid by Justice Berinson, in the following illuminating remarks:

‘As we remember, the court took into account the fact that the respondent is from a poor family, and for this reason he was unable to acquire for himself a profession that guarantees a high income. With all due respect, I am of the opinion that this conclusion has gone one step too far. There have always been children of poor families who attained outstanding spiritual and material achievements, in accordance with the saying in the Talmud: “be heedful [not to neglect] the children of the poor, for from them Torah goeth forth” (Babylonian Talmud, Nedarim 81a [111]). In our time and in our country many possibilities and opportunities are open to the children of the poor, so they may fulfil their aspirations to advance in society and to increase their level of education and professional training’ (CA 572/67 Perser v. Ezra [40], at p. 400).

 

Such was the case then, and such is certainly the case today. It was  Justice Bejski who expressed his resistance o using statistics relating to ethnic origin or gender in calculating the loss of earnings:

‘The appellant was approximately seventeen years old when the judgment [of the lower court] was given, and she is still a student. We cannot say that she will not continue her studies in order to acquire a profession, and even if according to general statistics the number of women from this sector who leave the home to work is still low in comparison to the Jewish sector, this is not a static number, especially not for the younger generation. General statistics do not even indicate what this group of women who work is made up of in terms of social status, area of residence, etc.. And since various factors may influence the appellant’s life-path, it does not seem reasonable at this time to say that she certainly will not join the work force in production or services’ (Atrash v. Maalof [1], at pp. 630-631).

Similarly, the court in Australia emphasized that the family history of an injured child should be considered with great caution when determining the loss of earning capacity of that child. Its remarks are also relevant to our case:

‘Many young people break out of their family background and achieve high job status and income. There are many captains of industry, chiefs of commerce, Parliamentarians, Ministers and indeed even Prime Ministers who illustrate the danger that arises if one automatically imposes family background income as a limitation’ (Rotumah v. New South Wales Insurance Ministerial Corporation [85]).

In the absence of specific circumstances to prove the contrary, every boy and girl in Israel — whether from a rich or a poor home, and regardless of origin — has an opportunity of finding their way into the various economic circles. Everyone has the right to enjoy this opportunity. Giving less compensation for identical injuries, merely because of the gender, socio-economic status or ethnic origin of the injured person, if fails to restore the damage caused by the tortuous act. It perpetuates a historical reality. It prevents the realization of the new reality. It does not recognize an important aspect of the head of ‘loss of earning capacity,’ namely the loss of the right to aspire to self-realization in the professional sphere, and the accompanying benefits.

 

36. It should be noted that the position of the adult is frequently different from that of the child. The path in life that he has already trodden upon has provided him with various possibilities, and the choices that he has already made along that path often make it possible to see what awaits him in the future. An adult’s job before the accident, and the salary that accompanies it, his achievements and his promotion prospects, are all a result of those choices, and therefore they constitute the relevant facts needed for restoring the status quo. These facts will replace the national wage statistics, thus validating the adult's choices. But the situation of a minor is different; he has not yet, in most cases, had time to choose his professional path. For him, the future is a mere hope, but no less than a hope that may be realized. The national average reflects the spectrum of opportunities that was available to him but for the accident.

The choice of a uniform statistical basis, when we are dealing with plaintiffs with no proven earnings pattern, does not mean that we are departing from the individual approach that prevails in the law of compensation in torts. The use of general statistics is reserved solely for those cases in which it is not possible to resort to an individual assessment. This ensures that the rule of Restitutio In Integrum and the principle of corrective justice are not undermined (see Chamallas, ‘Civil Rights in Ordinary Tort Cases: Race, Gender, and the Calculation of Economic Loss,’ supra, at pp. 1460-1461, where she expresses support, ‘at least in the short term,’ for this distinction between the adult and the child). However, even for an injured child the national average wage is merely a presumption that can be rebutted. When the specific child can tell us about the road he already took, or expected to follow — as an individual human being— the individual criterion may certainly affect the statistical result. I will return to this later.

 

37. Moreover, the hope is not merely a hope. It may, and should be, assumed that the position of women, minorities and weaker sectors of society will improve in the future and better times are ahead. The world is not in regression. The future will be brighter than the past. Stereotypes are dissipating, and discriminatory assumptions are being shattered by reality (see also S.R. Lamb, ‘Toward Gender Neutral Data for Adjudicating Lost Future Earning Damages: An Evidentiary Perspective,’ 72 Chic.-Kent L Rev. 299 (1996); Chamallas, ‘Questioning the Use of Race-Specific and Gender-Specific Economic Data in Tort Litigation: A Constitutional Argument,’ supra; Martha Chamallas, ‘Civil Rights in Ordinary Tort Cases: Race, Gender, and the Calculation of Economic Loss,’ supra). A person has more opportunities today than she did in the past to acquire education or professional training, and it should not be assumed that people will remain forever shackled to the same status into which they were born (Greyhound Lines, Inc. v. Sutton [80]). In any case, we should not assume that an existing form of discrimination and the balance of powers of the present will always prevail in our country. The distribution of resources between different social groups may change. The opportunities available to the various groups could become more equal, and as a result, it may be assumed, that the gaps in income will decrease or vanish (see also, in the field of legislation, the Equal Remuneration for Female and Male Employees Law, 5756-1996; the Equal Employment Opportunities Law, 5748-1988). These are realistic assumptions, especially with regards to the distant future of the children of today. The table of the national average wages encompasses this possibility of change. Therefore it is only right, from a factual viewpoint, not to shackle the injured child with the bonds of the discriminatory reality that prevails at the time the judgment is handed down. This belief was discussed by Justice Mills in the Supreme Court of the State of Mississippi:

‘We must not assume that individuals forever remain shackled by the bounds of community or class. The law loves certainty and economy of effort, but the law also respects individual aptitudes and differences’ (Greyhound Lines, Inc. v. Sutton [80], at pp. 1276-1277).

The use of statistical data based on the sector, race or ethnic group of the injured person gives effect to the prevailing division of resources in society. It weights the past but does not reflect the reality of the future. It is not normatively appropriate. Restoring the status quo under the heading of  loss of earning power means bringing the injured person to the place destined for him in the future, not returning him to the position of his forefathers (and foremothers) were in the past. This perception leads to the conclusion that finding the tortfeasor liable for compensation in accordance with the national average wage table, as opposed to using group statistics, does not impose on the tortfeasor an excessive liability or make him responsible for the wrongs of the past. Finding the tortfeasor liable for compensation on the basis of the national average wage merely assumes that every child stands on his own, with his future before him. It assumes that the world does not stand still, and that present realities should not be frozen for the purpose of awarding damages for future loss. From the standpoint of corrective justice it is not right to say that our approach turns the injurer into an instrument for perusing social goals and for remedying an injustice built into society. The injurer is obliged to provide compensation that reflects what the injured person lost (cf. Cassels, Remedies: The Law of Damages, supra, at p. 144; see also A. Porat, ‘Negligence and Interests,’ 24(2) Tel-Aviv University Law Review (Iyyunei Mishpat) 275 (2001)).

 

Distributive considerations

 

38. Corrective justice is, as aforesaid, merely one expression of universal justice. Some believe that the law of torts has a wider role. Therefore, there are some that take into account the distributive ramifications when deliberating questions in the law of torts. There are some who believe that the law of torts should seek to realize the principle of equality in society, and particularly seek to adopt compensatory rules that strengthen the weaker sectors of society, and reduce gaps between the rich and the poor (see, for example, R.L. Abel, ‘A Critique of Torts,’ 37 UCLA L. Rev. 785 (1990), at pp. 798-803; T. Keren-Paz, ‘“It Costs Me More”: Rejecting the Arguments of Illegitimacy and Excessive Cost Brought against the Promotion of Equality in Private Law,’ 7(2) Mishpat uMimshal (Law and Government) 541 (2005), and the references cited there; cf. H. Dagan, Property at the Crossroads (2005), especially at pp. 55-65). The principle of Restitutio In Integrum, so it is alleged, ‘blocks the possibility of change in the distribution of wealth and power in society by means of the law of torts’. It serves, so it is argued, ‘as one of many instruments for justifying the existing distribution of resources in society, for regarding it as a natural and neutral situation and for resisting change thereto’ (T. Keren-Paz, ‘How Does Compensation Law Render the Poor Even Poorer?’, 28(1) Tel-Aviv University Law Review (Iyyunei Mishpat) 299 (2004). No doubt, distributive justice is also an important branch of the tree of justice.

Obviously, an approach that grasps the law of torts as a means of achieving distributive goals, will support the notion proposed by us  in this judgment(see, for example, T. Keren-Paz, ‘An Inquiry into the Merits of Redistribution through Tort Law: Rejecting the Claim of Randomness,’ 16 Can. J. L. & Juris. 91 (2003), at pp. 121-126). This article, as other articles, claims that awarding women smaller compensation as compared to men, which intends to restore the status quo, actually has a regressive effect. It does not reflect the full contribution of the woman — lost due to the tortuous act — at home and in the labour market; it does not take into account the possibility that disparities will diminish, and that the current resources distribution will shift. This is also true, mutatis mutandis, regarding children who belong to various sectors of the population (see also Chamallas, ‘Civil Rights in Ordinary Tort Cases: Race, Gender, and the Calculation of Economic Loss,’ supra, at pp. 1456-1459).

 

39. Differential compensation based on gender, race or ethnicity may also result in imposing the costs of the tortuous events on underprivileged plaintiffs. This is a problematic outcome, both from the distributive perspective, and from the economic perspective. The difficulty is illustrated by the insurance system. For instance, when underprivileged people pay the exact same insurance premium for third-party insurance as the more affluent people do (in their capacity of potential tortfeasors), the later receive higher compensation if they are themselves injured. Such a ‘regressive cross-subsidization’ occurs, according to this analysis, where individuals with a lower income pay the same insurance fees as those with a higher income, but receive lower compensation. This issue was discussed by Prof. Priest:

‘The third-party premium is set with reference to average expected loss. Thus, the high correlation of total awards with income means that premiums reflect the average income of the population of consumers. The implication of charging each consumer a premium related to average income is that consumers with high incomes are charged a premium lower than their expected loss, and consumers with low incomes are charged a premium higher than their expected loss. Third-party insurance thus requires low-income consumers to subsidize high-income consumers’ (G.L. Priest, ‘The Current Insurance Crisis and Modern Tort Law,’ 96 Yale L. J. (1987) 1521).

See also Keren-Paz, ‘“It Costs Me More”: Rejecting the Arguments of Illegitimacy and Excessive Cost Brought against the Promotion of Equality in Private Law,’ supra, at pp. 589-591. Awarding damages on the basis of group affiliation, race, gender or ethnicity may also create, according to this approach, a regressive distribution of wealth between the poor and the rich. By contrast, compensation based on neutral criteria will minimize the effect of these regressive consequences.

 

40. It should be noted, however, that not everyone agrees that the law of torts was intended, in principle, to attain values of equality and distributive justice (for a discussion of distributive justice in the law of torts, see also G.C. Keating, ‘Distributive and Corrective Justice in the Tort Law,’ 74 S. Cal. Rev. (2000) 193; K.D. Cooper-Stephenson, ‘Economic Analysis, Substantive Equality and Tort Law,’ Tort Theory (K.D. Cooper-Stephenson and E. Gibson (eds.), 1993) 48; Weinrib, The Idea of Private Law, supra; Weinrib, ‘Understanding Tort Law,’ supra; for the claim that tax laws are in general more effective than private law for distributing wealth in society, see L. Kaplow & S. Shavell, ‘Why the Legal System Is Less Efficient than the Income Tax in Redistributing Income,’ 23 J. Legal Stud. (1994) 667). Even the more general question of applying the principle of equality in private law, and the relationship between its place in public law and its place in private law, has not yet been determined (see, for example, HCJ 6126/94 Szenes v. Broadcasting Authority [41]; CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [42]; on the question of whether the assessment of damage on the basis of the injured person’s sex is consistent with the constitutional right to equality, see, inter alia, E. Gibson, ‘The Gendered Wage Dilemma in Personal Injury Damages,’ in Tort Theory (K.D. Cooper-Stephenson & E. Gibson (eds.), 1993) 185; on the debate in the United States on this issue, see also, A. McCarthy, ‘The Lost Futures of Lead-Poisoned Children,’ 14 Geo. Mason U. Civ. Rts. L. J. 75 (2004)). At present, we are not required to discuss these complex issues in length, nor do we need to resolve this matter. There is no doubt that using the law of torts as means for reducing gaps between the prosperous and the less-fortunate individuals, brings forwards complicated questions, and much has been written about this issue. All that we wish to say is that the approach proposed by us here is rooted in perceptions of justice that go beyond the approach of corrective justice and the principle of Restitutio In Integrum and seek to realize values of equality, as well as in other perceptions.

 

Further remarks from an economic perspective

 

41. The difficulty inherent in awarding compensation on the basis of group statistics can be illustrated by considering the question from the viewpoint of an economic analysis of the law of torts, and the efficient deterrence approach (for a general discussion, see: I. Gilead, ‘On the Limits of the Efficient Deterrence in the Law of Torts,’ 22 Hebrew Univ. L. Rev. (Mishpatim) 421 (1993)). Imposing tort liability changes the cost of the risk creating activity. The notion of deterrence in the law of torts is commonly identified with the sanction imposed on the tortfeasor— the amount of compensation that he is found liable to pay. This notion is based on the assumption that the sanction imposed affects the level of precaution that he will take into order to prevent the foreseen damage. If the tortfeasor can expect to pay compensation that does not fully reflect the damage that he caused, he will be ‘under-deterred,’ and for this reason he may continue his undesirable activity, or refrain from adopting precautions that cost less than the expected damage (see Estate of Ettinger v. Company for the Reconstruction and Development of the Jewish Quarter [3], at p. 516 {124}; A. Porat, ‘Collective Responsibility in the Law of Torts,’ 23 Hebrew Univ. L. Rev. (Mishpatim) 311 (1994), at pp. 349-350). The assumption of the economic analysis is that the law aims to achieve optimal deterrence, and that a rational tortfeasor will undertake precautions that cost less than the expected damage.

Compensation that relies on data concerning the ethnicity, social status or race of the plaintiff may lead to an absurd result, where the expected damage to injured individuals with a low expected income is less than the expected damage to those with a higher one;  consequently, the precautions that a tortfeasor will take – will be different according to the potential victims (a man or a woman; people of different religious affiliations; a resident of a high-class neighbourhood or a resident of a poor city). In so far as the tortfeasor has control of the situation, and sometimes he does have such control, the risks he takes will be directed towards the weaker sectors of society (see, for example, Abel, ‘A Critique of Torts,’ supra). This difficulty is, admittedly, shared by the various ways of computing loss of earning (A. Porat, ‘The Lost Years, Loss of Earnings and the Price of Manslaughter,’ Prof. Menashe Shava Memorial Book (D. Friedmann (ed.), not yet published), but it is emphasized and enhanced in the context of the special circumstances under discussion. From the economic point of view, relying on group-based statistics means that despite the evidential ambiguity enfolding the future of children, the law supposedly assumes that children belonging to certain groups are not even expected to have reached the national average wage. This provides tortfeasors with an incentive to take less strict precautions with regard to those children. The price of injuring some children will be different than the price of injuring others, even if the circumstances of the injury and the physical damage caused are completely identical, and even if all of them have not yet even considered what they will do ‘when they grow up.’ This result is clearly intolerable, whether one looks at the matter the through the idea of equal distribution, or the notion of the efficient deterrence.

The standardization of compensation, according to the national average wage data, not only realizes the principle of Restitutio In Integrum, as aforesaid, but it also minimizes the problem of unequal incentives.

 

42. Indeed, one may wonder whether the result that we are reaching today is the most ‘efficient’ result in a 'narrow' economic sense. Arguments may be presented both for and against. On the one hand, it may be argued that the average wage in a certain sector of the population reflects the social price involved in injuring an individual from that sector. It therefore follows, according to this argument, that awarding equal compensation will lead to a result of ‘over-deterrence’ or ‘under-deterrence,’ i.e., to adopting precautions that are not consistent with the cost involved in the conduct. On the other hand, it may be argued, as we explained above, that the social price of harming a child is unknown. The road not (yet) taken could have been a road to greatness. The particular child could have become greatly successful, had it not been for the accident. It is considerably difficult to calculate the expected damage in the future, based on the current group statistics. Moreover, we should not ignore other factors that affect the equation, including the reduction in information-costs due to the rule of uniform compensation. The cost of a group determination is in itself expensive. This was discussed by Prof. Calabresi, who explained:

‘... since subcategorization is expensive, it will at some point be cheaper to have some externalization to a broader category than to subcategorize indefinitely… If these costs are substantial, we might not be willing to spend the money to define some actuarially significant subcategories, even though their definition is possible…’ (S.G. Calabresi, The Cost of Accidents (1970), at p. 146).

One way or another, our approach differs from the narrow economic one (see, for example, CA 44/76 Atta Textile Company. Ltd v. Schwartz [43]). It incorporates various considerations based on the different aspects of justice and achieving an efficient outcome in a broader sense. The cost-benefit analysis is not necessarily a monetary equation. In one context, we discussed this notion of the broad perspective embodied in the well know formula of Judge Learned Hand:

‘The formula, in my opinion, does not need to limit itself merely to considerations of economic efficiency. Indeed, it is not a “formula” in the accepted mathematical sense of the term. It is a conceptual framework, which is used by the court as a tool of logic. It is the court that gives it content. The likelihood of the occurrence of the damage, the extent of the damage and the cost of preventing it are not all mathematical values that the court inserts in order to reach, at the end of the inquiry, a numerical result. These variables of formula can reflect social values, and the court is required to give them significance. In doing so, the court may enter into the formula any value that it thinks proper; it may make different balances between different risks that are caused to different persons — the tortfeasor, the injured party, a third party and the public (A. Porat, ‘The Many Faces of Negligence,’ 4 Theoretical Inquiries in Law (2003), at p. 105), and it may also take into account considerations such as just, fair and moral conduct. An injustice is a cost; corrective justice is a benefit. The concepts of cost and benefit may relate to different considerations in the sphere of “justice,” such as the considerations of “distributive justice”’ (CA 5604/94 Hamed v. State of Israel [44]).

This notion is applicable in our case as well. The economic analysis is not used here to define an efficient result in the mathematical sense. Moreover, an efficient result cannot necessarily be fully realized in the matter that we are discussing here. But the economic analysis illustrates the illogic and the injustice inherent in the discriminatory approach. Indeed, following the remarks of President Barak in Hamed v. State of Israel [44], according to which ‘the reasonable person is not only the efficient person. He is also the just, fair and moral person,’ we would say that the full compensation is not just a matter of efficiency. It is also just, fair and moral. I accept the remarks of Prof. Porat, in ‘The Lost Years, Loss of Earnings and the Price of Manslaughter,’ supra, with regard to the case of a Bedouin child who was injured in an accident and suffered a reduction in his earning ability:

‘… This result [awarding low compensation to a Bedouin child, according to the average wage of an Israeli Bedouin citizen and not according to the national average wage] is unacceptable; it is one thing to award low damages to someone who has low earnings and therefore his loss of earnings is small, but it is a completely different thing to determine that, because we are dealing with a Bedouin child, his compensation will be lower than a Jewish child, because statistically the former will earn less than the latter.’

Thus we see that all of the aforesaid — the demands of justice in its various aspects, the economic analysis and the concept of restoring the status quo — all lead to the same result, namely the rejection of group-based statistics and preferring the ‘blind’ statistic in so far as compensation for injured children is concerned.

 

Previous Decisions of the Israeli Courts Regarding the Question Before Us

 

43. Our conclusion, which as mentioned above is based on the fundamental concepts to the law of torts, is supported also by the case law, even though not all of them have followed this path (see, for example, in this court: Altripi Lelahahoudat Alaama Ltd v. Salaima [36]). We have discussed the criticism expressed by this Court, as early as the 1960s and the 1970s, on the position that implied: ‘Once a pauper, always a pauper’ (Perser v. Ezra [40] and Atrash v. Maalof [1]). In those judgments, compensation was awarded on the basis of an overall assessment. A similar opinion was adopted in CA 1433/98 Hamed v. Ahlam [45], where the computation was based on the national average wage table. That case examined the question of the loss of earnings of a two year old girl. It was argued that the loss of earnings should be based on a general assessment or on the average wage in the village where she lived, which amounted to half of the national average wage, since her familial circumstances showed that ‘she would have left the work place at an early stage of her life.’ The Court rejected this position and held that the amount awarded by the district court, which based the loss of earnings on the national average wage, should remain unchanged. It was held in that case:

‘True, the plaintiff lives in a village where the average wage, as determined by the Central Statistics Bureau, amounts to less than half of the national average wage. Yet these figures may change in the future, and the district court also took into account the possibility that the plaintiff might have found a work place away from her place of residence.

It did not find a sufficient evidential basis that should justify deviating from the assumption regarding the wages on which the compensation is calculated. Indeed, it seems that in this particular case the figures to which the defendants refer are insufficient to justify a deviation from the aforesaid assumption. Under the circumstances of this case it would appear that there is no basis for intervening in the assessment that was made by the trial court for this head of damage.’

 (See a similar decision, with regards to a thirty year old who was injured, in CA 802/03 Bashir v. Israeli Phoenix Assurance Company Ltd [46]). This idea was applied at that time to the specific circumstances of that case. Today we are stating it as a rule.

 

44. A similar position with regards to a distinction based on gender, ethnicity or family has also been adopted in the case law of the Israeli district courts. Thus, for example, Justice Y. Adiel rejected the claim that because a girl came from a family of Satmar Hassidim, she could be presumed to have earned less than the national average wage:

‘In the present context, I am of the opinion that we should not accept the argument that denies a child, who has not yet matured, or independently decided how he wishes to live or work, of compensation for the injury to his earning ability based solely on what is customary in the his community. Therefore, I am of the opinion that the injury to the earning capacity of the plaintiff should be based on the national average wage. Even the fact that the plaintiff’s mother earns a far lower wage does not undermine this conclusion’ (CC (Jer) 385/94 Binder v. Sun [55]).

 

And Justice S. Berliner in another district court case stated the following:

‘We are speaking of a girl who was injured when she was approximately eleven years old; her characteristics are average. There is no special characteristic in her background or past that will convince us she could not earn a living like any other average person when she would enter the labour market. The rule in this matter is that we should follow the national average wage table. It makes no difference, in my opinion, that we are speaking of a woman rather than a man; it is insignificant that she comes from the Arab sector; the fact that she lives in a (relatively) small village, Kfar Yassif, is of no importance, and the same is true for an outlying place of residence, or one that has a high unemployment level or that does not have well-developed schools and professional training institutions. The assumption should be that a child who is a resident of Israel, who is injured in a road accident, and has average characteristics, would have earned in the future the equivalent the national average wage’ (CC (Hf) 1844/00 Ali v. Daud [56]).

 

See also, additional judgments that rejected the claim that the compensation should be reduced due to factors such as race, religion and ethnicity: CC (Jer) 1533/98 Turman v. Israel Car Insurance Pool [57]; CC (Jer) 653/90 Aylin v. Cohen [58]; CC (Jer) 2074/00 S. v. Knesset Yehuda School [59]. However, as we have said, this is not the only existing approach in the Israeli law of compensation. Data regarding specific wage rates in certain towns, certain ethnic groups and the socio-economic position of the injured person’s family are frequently brought before the trial courts, and in some cases they are used in the judicial decision (see for example, CC (Jer) 3341/01 Dumer v. Avital [60]). As mentioned, in some contexts — for example gender based distinction — there is usually no question in Israeli law that the national average wage applies to everyone. We use the word ‘usually,’ because when data regarding socio-economic and ethnic affiliation are taken into account in assessing compensation, gender-based discrimination is sometimes implicitly involved. To illustrate this, consider the example of a court that takes into account the particulars of a certain village, including the fact that most of its women have not worked outside the home in the past.

 

45. In my opinion, the attempt to determine that the children of a certain population groups will a priori be unemployed or low earners is doomed to fail. We should not condemn the child to a certain fate merely because of the environment in which she grew up, the education and occupation of her parents, nor his or her gender or the racial or ethnic origin from which she comes. It makes no difference if the plaintiff is a boy or a girl, whether she comes from an established or underprivileged family, whether she is an immigrant or was born in Israel, whether she lives in a rich or poor neighbourhood or whether she is a member of a minority group. The computation of compensation according to group affiliation creates, in fact, discrimination on the basis of religion, race, nationality or gender. This discrimination was defined in our legal system as the ‘worst kind of discrimination’ (per Justice M. Cheshin in HCJ 6845/00 Niv v. National Labour Court [47], at pages 683-684; see also the remarks of Justice Dorner in HCJ 4541/94 Miller v. Minister of Defence [48], at p. 134 {227}). The principle of the personal autonomy requires us to assume that in the absence of individual and specific circumstances that indicate otherwise, every child has the possibility of advancing, developing and joining the Israeli labour force at least on the level of the national average wage. A regime that that seeks to link the child's earning ability to that of his family members, gender or people from the social background in which he grew up, rules out the possibility that he would have freed himself from the chains that the group-based statistics seek to impose on him. It leads to a regressive result —perpetuating and strengthening the existing social classes, and undermining the deterrence of potential tortfeasors.

 

The basic approach and the exceptions thereto

 

46. It follows from all of the above, that we must assume that for children who have not yet reached adulthood on the date of the accident, and whose career and means of earning have not yet crystallized, their loss of earning ability should be calculated based on the national average wage. This premise for computing the child’s loss of earnings, which creates uniformity in compensation, is consistent with the principle of Restitutio In Integrum, alongside the aspiration of realizing the right to equality and the need to create optimal deterrence. This assumption applies to every girl and boy, man and woman, black and white, members of all religions, and people of all ethnic origins. This is the initial assumption, but it may be rebutted. The question that we still have to consider concerns the nature of the evidence that will allow a deviation from this assumption.

One important factor in deciding when to deviate from the average wage assumption could be the child's age. ‘We have already mentioned more than once that determining the loss of future income for a child who has not yet actually entered the labour force is always a guess, and the younger the child is, the greater the guess’ (per Justice Y. Malz in Efraimov v. Gabbai [10], at p. 194). The older a person is, the more information is available regarding his studies, his hobbies, his talents, his persistency etc.. Due to such additional information, the uncertainty regarding the child's potential future earnings can be reduced. In any case, the possibility of deviating from the assumption becomes more reasonable as the child approaches maturity and is closer to entering the labour market; but even then, as a rule, the possibility of deviating from the assumption is limited.

 

47. The child’s age is therefore an important factor, and it may be accompanied by additional evidence that, in special cases, courts have already recognized as capable to allow a deviation from the national average wage table. For example, it was held in CA 750/79 Klausner v. Berkovitz [49], that when there is a real chance that the injured person would work in another country, where the wage level was different than in Israel, this fact should be considered when calculating his damages (see also CA 702/87 State of Israel v. Cohen [50], at pp. 731-732). A similar position was also adopted with regards to children, that the centre of their lives was in the Gaza Strip or Judaea and Samaria (CA 718/91 Suliman v. Wafa [51]; CA 9117/03 Zohar v. Bardweil [52]; see also CC (BS) 351/89 Difalla v. Azbarga [61]; CC (TA) 2024/01 Batran v. Tryg-Baltica [62]). The logic underlying these rulings is that the children who live in other foreign countries will not be a part of the Israeli economy in the future. Therefore, and from this viewpoint alone, the Israeli national average wage carries no real significance in calculating their loss of earnings. However the situation with regards to children who live, and intend to continue living in Israel, is different.

 

48. Sometimes various concrete characteristics of the injured child — his qualifications and capabilities, education and aspirations as expressed before the date on which the damage occurred — are significant. These in turn may justify deviation from the national average wage. Especially, when the deviation leads to awarding the plaintiff with higher compensation., For example, it has been held that the proof of an obvious talent for sports prior to the accident, justifies awarding damages that are higher than the national average wage (CA 4597/91 Afikim Kibbutz v. Cohen [53], at pp. 128-129; HaSneh Israel Insurance Co. Ltd v. Zuckerman [35]). A similar position was adopted with regards to intellectual skills, academic tendencies and academic achievements (State of Israel v. Cohen [50]; CC (Hf) 1274/98 Nujidat v. Estate of Nujidat [63]; CC (Hf) 1969/87 Yaakobi v. Mimni [64]), although it was emphasized that ‘for professional success and, for increasing earning ability, additional factors are required, such as diligence, persistence, good interpersonal relationships, organizational skills and other similar qualities’ (Axelrod v. Tzur-Shamir Insurance Company [27]). As stated above, this Court has expressed different approaches regarding the nature and extent of such evidence, and the probability that they can indicate the child's professional future had it not been for the accident. For instance, there has been, in one case, a requirement of ‘near certainty’ (CA 1027/90 Clal Insurance Co. Ltd v. Batya [33]); in another case there has been a requirement for an ‘additional specific characteristic’ with regards to an ‘obvious intellectual ability or obvious tendency towards a field of employment or art…’ (Estate of Sarah Saidi v. Poor [28], at pp. 633-634); and according to Justice Or, a requirement for ‘special facts concerning the injured person, which are capable of assisting, even in a general way, in differentiating the expected earning ability from the national average wage’ (Danan v. Hodeda [34], at pp. 606-607), where ‘in assessing the compensation for damage for a certain period in the future, we also take into account events that may occur in the future, even if the chance that they will indeed occur is lower than the level of proof required in a civil trial’ (HaSneh Israel Insurance Co. Ltd v. Zuckerman [35]).

 

49. In my opinion, specific evidence and indications concerning the injured child will allow us to deviate from the assumption of the national average wage — in either direction — only where they are extremely significant and they show a high probability that the child would indeed have developed a certain career in the future (or, alternatively, that he would have difficulties in finding profitable employment). Indeed, inclinations, skills and ambitions alone are not necessarily sufficient (see, for example, CA 6431/96 Bar-Zeev v. Mohammed [54]); experience shows us that it is usually hard to predict what will happen in the future and whether the inclination, ambition or skill of a child will be realized in acquiring a profession; on the other hand, there are children who are 'late bloomers' and are very successful, despite the prediction of experts that they will not amount to much. Therefore there must be particular information about the specific child in order to exclude him, with a high level of probability, from the scope of the general assumption. It should be noted, however, that usually, ‘… in assessing the chance, the court does not require the level of certainty that is normally required in a civil trial. It does not demand a balance of probabilities. The court is merely assessing chances. Therefore the court will take into account a chance that is less than fifty percent, where the likelihood of the chance is reflected in the amount of the compensation’ (Naim v. Barda [4]).

We are not seeking to change this rule, but in this context, considering the assumption submitted in our judgment on the one hand, and the inherent lack of certainty in predicting a child’s future on the other, the court should generally follow the national average wage table. Deviating from this standard will be harder, as we have said, in the case of younger children, since usually it is very difficult to prove an intention and ability regarding the future career of a young child.

 

50. In summary, there is no doubt that assessing the damages for the loss of earning capacity in the future is not a simple task, especially where minors are concerned. The court always seeks to make such an assessment that would reflect reality, in as far as this is possible; in the absence of specific information which allows for an individual-actuarial computation, the court frequently makes use of the national average wage statistic. This figure embodies the average earning patterns of people in Israel. Since this is a uniform compensation, computed according to a figure that reflects the average, it necessarily benefits some people, and under-compensates others. But the question of who benefits and who loses – will always remain unanswered. This, however, we do know: The law must not determine, ab initio, different starting-points for different children in Israel merely because they belong to different population groups. The damages, as we have seen, are awarded for the loss of potential, and in the absence of individual evidence to the contrary, every child in Israel has an equal potential. It is the right to decide so from a factual point of view. It is correct also from the normative and moral point of view. It has to be so decided according to any point of view. It is so decided.

 

Rim’s claim

 

51. Rim Abu Hana was injured in a road accident when she was only five months old. The district court deliberated in its judgment as to whether it should consider, when computing the loss of her earnings, the fact that she was born in a poor Arab village. Ultimately, while the district court pointed out the changing conditions of life and the trend towards equality in the earnings of men and women, it nevertheless awarded a global sum for this head of damage, stating:

‘In my opinion, we should not go to extremes in reducing the damages due to the plaintiff on account of her being a resident of the village of Reineh, or because most of the women in the village do not earn money outside their homes, since living conditions may change, and the accepted trend around the world is to make the living conditions and livelihood of men and women as equal as possible (CA 685/79 Atrash v. Maalof [1], at p. 630).

Yet, since there is almost no data on which it is possible to assess the plaintiff’s earning opportunities, it is preferable that I should award global damages for this head of damage as well, in view of the fact that there are, as of yet, no indications of the plaintiff’s fields of interest, of what will be her education, her path in life and her training (ibid. [1], at p. 630).

There is no alternative to determining the estimated loss of her earnings on a global basis, in which I am taking into account the national average wage, the average wage in the village of Reineh, the plaintiff’s socio-economic background and the tension between the retirement age, which is 65, and the possibility of employees of various kinds to continue to earn a salary until the age of 70, and the capitalization of the aforesaid.

The appellants claim that de facto, the court based the global damages for loss of earnings on the national average wage data, and thereby, in their opinion, it erred. According to them, the respondent’s mother does not work, and her grandmother — a teacher by profession — stopped working after her marriage. The appellants also claim that most of the women in the sector to which the respondent belongs do not work or they earn a living only until they marry. The appellants also rely on figures regarding the specific average wage in the village of Reineh, which is where the respondent lives. They claim that according to these figures the average wage of women in the village of Reineh does not exceed the sum of NIS 3,000 per month. All of these figures show, according to the appellants, that the court should not have made an actuarial computation on the basis of average figures that are, in their words, ‘far removed from the figures that are relevant to the respondent’.

The respondent, in contrast, is of the opinion that the court erred when it based its computations, inter alia, on the average wage in her place of residence. As the trial court noted: ‘…I am taking into account the national average wage, the average wage in the village of Reineh, the plaintiff’s socio-economic background...’. The respondent is of the opinion that the fact that she belongs to the Christian community indicates a high earning potential and a good chance of joining the labour market. In addition, the respondent argues that ‘… a claim that a child from a minority group will earn less than the national average wage is, to say the least, an outrageous and shocking claim’ and that she is entitled ‘to grow up like any other girl in Israel and to receive a proper education, professional training and a suitable place of work that are no less than what any other girl in Israel will receive…’. The respondent emphasizes in this context the trial court's remarks as to the scarcity of evidence presented before it prior to determining her future earning potential; she claims that this evidential ambiguity should have led the court to rely on the national average wage.

 

52. Rim Abu Hana was injured in a road accident when she was a very young infant. When the accident happened, her entire future lay ahead of her. No assumptions should be made, at such an early stage in a person’s life, with regard to her future, the direction in which she may develop or what her occupation may be. Certainly no assumptions should be made as to her detriment on the basis of her supposed ‘socio-economic background.’ It should not be thought that since the respondent is a member of the Christian community, she would not have been able, had it not been for the accident, to reach the level of the national average wage. The figures presented by the appellants as reason to depart from the presumption of the national average wage — the fact that the respondent is a baby-girl and not a baby-boy, the fact that she belongs to the Arab sector, the fact that in her family the women tend not to work after they are married, as well as her being born in a place that is characterized by a low average wage — are irrelevant for the purpose of computing the damages for loss of earning capacity in the future.

Therefore the basis for the computation should be corrected, and Rim Abu Hana should be granted damages based on the national average wage. Her ‘socio-economic background,’ including the figures regarding the average wage in her village, should not be taken into account. The case is thus returned to the district court, so that it may reassess the computation of the head of loss of earning capacity. As for the question of freezing part of the awarded damages until the respondent’s rights vis-à-vis Social Security are clarified, she agrees that should her position regarding the computation of lost earnings be accepted, there would also be room to order such a freeze. The legal fees will be revised in accordance with the outcome that is reached.

The appeal and the counter-appeal are therefore allowed in the aforesaid sense. The appellants shall bear the cost of the respondent’s legal fees in the sum of NIS 20,000.

 

            Justice A. Grunis:

I agree.

 

            Justice S. Joubran:

I agree.

 

Given today, 23 Elul 5765 (27 September 2005).

Crim.A. 47/56

           

DAVID MALKA

 v.

THE ATTORNEY-GENERAL

 

 

 

In the Supreme Court sitting as a Court of Criminal Appeal

[October 24, 1956]

Before Silberg J., Goitein J., and Berinson J.

 

 

 

Criminal Law - Criminal Code Ordinance, 1936, s. 218 - Causing death unintentionally - Negligence - Measure of liability - Civil liability - Civil Wrongs Ordinance, 1944, s. 60(a) - Application of rule in Hadley v. Baxendale - No liability for consequences of unusual series of events.

 

            On September 1, 1953, the appellant, who was driving a truck, knocked down a child of two years of age, Shimon Manan, causing a fracture of the arm. The child was taken to hospital where the doctors examined the arm, discovered the fracture, but also found that the fracture was a closed one so that the child's blood had not come in contact with the road. The doctors considered that there was, for this reason, no need to give the child an antitetanus injection, and that in fact it "might have been dangerous to do so. The child remained under treatment in hospital, but a few days later the wound opened. The child was given antibiotics but no injection against tetanus. On September 9 the child died.

           

            The appellant was charged under s. 218 of the Criminal Code Ordinance 1⁾ in the District Court of Haifa with having unintentionally caused the death of manan. The court held that the appellant had been negligent in driving the truck when he knocked down Manan and that there was a causal connection between the accident and the death and accordingly found the appellant guilty of causing the death within the meaning of the section. The appellant was fined I.L. 75.-.

           

Held :         allowing the appeal, that although the appellant was negligent when he knocked down the child, his negligence was not the cause of the death of the child since it was not possible for the appellant to foresee what the doctors had failed to foresee.

 

                        Held further, that the measure of liability for the purposes of s. 218 of the Criminal Code Ordinance, 1936, is the same as the measure of civil liability in the law of torts, and that s. 60(a) of the Civil Wrongs Ordinance, 1944, which deals with the measure of liability in tort for the consequences of an act, determines that measure according to the rule in Hadley v. Baxendale, (1854), 156 E.R. 145, and not that in re Polemis [1921] 3 K.B. 560.

 

Israel cases referred to :

 

(l)         Cr. A. 35/52 - Shalom Rotenstreich v. Attorney-General ; (1953), 7 P.D. 58.

(2)        C.A. 224/51 - Noah Pritzker and Others v Moshe Fridman;(1953), 7 P.D. 674.

(3)        C.A. 22/49 - Zecharia Levi v. Abba Leon Mousaf; (1950), 4 P.D. 558.

 

English cases referred to:

 

(4)        In re Polemis and Another and Furness, Withy and Co., Ltd., [1921] 3 K.B. 560.

(5)        Roe v. Minister of Health and Another; Wooley v. Same, [1954] 2 Q.B. 66.

(6)        Minister of Pensions v. Chennel, [1947] K.B. 250.

(7)        Smith v. The London and South Western Railway Co., (1870) L.R. 6 C.P. 14.

(8)        Greenland v. Chaplin, (1850), 5 Ex. 243: 19 L.J. (Ex.) 293.

9. Aldham v. United Dairies (London) Ltd., [1940] 1 K.B. 507.

(10)      Thorogood v. Van den Berghs and Jurens, Ltd., [1951] 1 All E.R. 682.

(11)      Hambrook v. Stokes Brothers, [1925] 1 K.B. 141.

(12)      Lilley v. Doubleday, (1881), 7 Q.B.D. 510.

(13)      Sharp v. Powell, (1872), L.R. 7 C.P. 253.

(14)      The Arpad, (1935), 152 L.T. 521.

(15)      Owners of Dredger Liesbosh v. Owners of Steampship Edison, [1933] A.C. 449.

(16)      Haddley and Another v. Baxendale and Others, (1854)156 E.R. 145.

(17)      Weld-Blundell v. Stephens, [1920] A.C. 956.

(18)      Scott v. Shepherd, (1773) 96 E.R. 525.

(19)      The Argentino, (1889) 59 L.T. 914,

 

Hayoun for the appellant.

Eltis, Deputy State Attorney, for the respondent.

 

SILBERG J.: This is an appeal, by leave, against a judgment of the Haifa District Court, in which the appellant was convicted of an offence under section 218 of the Criminal Code Ordinance, 1936 (unintentionally causing death), and fined I.L. 75.-.

 

            2. Chance has played a large part in the facts of this case. Though the beginning was something small - a slight injury which was not in itself dangerous and was expected to heal, and which had resulted from the appellant's negligence (as was found by the court) - the end was fatal, after a series of further occurrences, not due to negligence, caused partly by the hand of man, and partly by Providence. These caused the death of the victim, a child of tender years, through an unusual coincidence. The legal question - in fact, the only question - confronting us is, to what extent the "final act" can be related to the "original negligence" of the appellant. This question falls in part within the category of the complex of problems which arose in the well-known "Polemis Controversy" (4), but in part also can be distinguished from it, because of the criminal character of the case, as will be explained later.

 

3. The facts briefly are these: -

 

            (a) On September l, 1953, at 9.30 in the morning, the appellant drove a tender laden with watermelons through the streets of Haifa, and while turning from Stanton Street into the Omar-el-Khateeb Street, at a point about ten meters from the cross-roads, his vehicle collided with a two-year-old child (Shimon Manan), who was knocked down or fell to the ground, and this caused a fracture in his arm above the elbow. The appellant's arguments - that he drove very slowly, that he did not and could not have seen the injured child because of a cartload of prickly pears which obstructed his view, and other similar excuses - did not avail him; the learned judge did not believe what he said and she, relying on proper and sufficient evidence, held, as a finding of fact, which we see no ground for disagreeing with or departing from, that that injury was definitely caused by the appellant's negligent driving.

           

            (b) On the same day, shortly after the accident occurred, the child was taken to the Rothschild Hospital. An X-ray was taken, the fracture in his arm was found and it was put in plaster. He did not receive an anti-tetanus injection, for the doctors were of the opinion that this was not necessary, as the place of the injury was a closed fracture, and the child's blood had not come into contact with the ground. According to the doctors who testified: -

           

            ''If there is no open wound, anti-tetanus injections are never given... This anti-tetanus is not a remedy entirely without danger, and it is not just given anyhow - only in cases where it is clear to us that there is an open wound... In this case, the wound was not open, and there was no reason for giving an anti-tetanus injection" (Dr.Kliffer, pp. 2, 3 of the record).

 

            "In this case, there was no reason for giving the child an anti-tetanus injection, because the skin on the body was closed" (Dr. Peyser, ibid., p. 14).

           

            "In this case, that of Shimon Manan, there was no justification for giving an anti-tetanus injection..." (Dr.Galli, ibid., p. 21).

 

One witness disposes of the matter by saying: -

 

            "When there is no wound (he is obviously referring here to the case when there is no open wound) and a person falls to the ground, the chances of his getting tetanus are almost nil." (ibid. p. 22)

           

            "In eight years that I have been working in the Rothschild Hospital in the surgical ward, that was the first case of a patient getting tetanus after a closed fracture" (Dr. Kliffer, ibid., p. 3).

 

            (c) After a few days had passed, a necrosis developed in the child's skin in the region of the fracture. The cellular tissue in the same spot died, the skin blackened and contracted, and, as a result, the wound opened and was no longer "closed". To avoid infection and sepsis, the child's doctors began to use anti-biotics, penicillin and streptomycin, but nevertheless did not give him an anti-tetanus injection.

           

            "The fact that a necrosis had taken place did not render it necessary to give an anti-tetanus injection" (Dr. Peyser, ibid., p. 13).

 

            "Infection (he is referring to the infection of the pus excretion of the necrosis) is something secondary, that appeared after a few days, and in such a case it is not usual to give an anti-tetanus injection" (Dr. Kliffer, ibid., p. 3).

 

            If I apprehend this medical expert's opinion correctly, what he intended to say is this: that as at that moment, several days had passed since the day that the body had come into contact with the ground. and during all of those days the wound had been closed, there was no room then for fearing that the tetanus germs would penetrate the opening that had been formed with the coming of the necrosis.

           

            (d) This was the opinion of the experienced doctors, but the facts, to their surprise, proved them wrong. On September 9, 1953, early in the morning, eight full days after the accident had occurred, there suddenly appeared in the injured child's body symptoms of trismus and ophisthotonus, that is to say, convulsion of the mouth and twisting of the spinal cord - characteristic signs of tetanus. The doctors' efforts to save him were of no avail, and at 11 o'clock at night, the child died as a result of the above-mentioned illness. The cause of the illness was, according to the evidence of the doctors and the court's finding, the penetration of tetanus germs at the time when (or after) the said necrosis took place.

           

            (e) Thereafter the appellant was charged with unintentionally causing death, an offence under section 218 of the Criminal Code Ordinance, and was brought to trial before the Haifa District Court. The learned judge held that, notwithstanding the unexpected turn of events, there was a direct causal connection between the negligent act of the appellant and the death of the child, and convicted him of the offence under the section. The learned judge drew an analogy between the present case and the Polemis case (4), and concluded therefrom that the foreseeability of the concrete result is not a prior condition to convicting a person according to section 218. The learned judge saw the distinction between the civil action for tort in the Polemis case (4), and the criminal prosecution in the present case, but thought that it did not affect the matter because in the judgment of this court in Rotenstreich v. Attorney-General (1), the court had likened the degree of criminal liability under s. 218 to the degree of civil liability in actions in tort. It is against that judgment of the Haifa District Court that this appeal is brought.

           

4. It is well known that the bare causal connection between the act and the result does not alone suffice to impose legal liability upon the doer of the act. I wish to state that the test of the causa sine qua non is not the sole test for determining legal responsibility. One will not find an act or event which is not preceded by a long series, in fact an infinite series, of necessary causes, and although from the scientific or philosophical point of view, as John Stuart Mill has taught us, there is no ground whatsoever for discriminating between them, they cannot all be regarded as of equal weight as regards legal liability, civil or criminal. By holding otherwise, one must eventually arrive at the first man as the prime cause for all of the sins of mankind. Therefore Anglo-Saxon jurists on both sides of the Atlantic have been long wrestling with the problems of the limitation of the causes which preceded a given act, of how to define them and how to make of them an unvarying instrument for the purpose of practical use in court. Much ink has been spilt over this knotty problem, and the coins that have been minted to explain it have long been chipped or lost their lustre: expressions like "proximate cause", "remote cause", "direct cause", "material", "substantial", "effective", "causa causans", and the like - all these being tests suggested by judges and writers as additional tests, second in order but equal in degree, to the primary test of the "necessary cause" (James and Perry, Legal Cause, 60 Yale Law Journal, 1951, pp. 761-811; Hart and Honore, Causation in the Law, 72 Law Quarterly Review, 1956, pp. 58-90, 260-281, 398-417).

 

            From amongst all those obscure tests and distinctions, one test, much more certain and clear, raises its head, and that is the test of "foreseeability", that is, the possibility of foreseeing the outcome of an act; though even this test has been fenced around to prevent it being the subject of criticism. It is a firm rule in the law of torts that, if the defendant, as a reasonable man, did not anticipate and could not have anticipated, that his act (or his omission) would bring in its wake any injurious consequence whatsoever to someone to whom he owes a duty of care, then he is not liable to pay for the damage that has been caused, notwithstanding that his act (from the physical point of view) constituted a necessary cause, or causa sine qua non, of the injurious consequences. In other words, the reasonable foreseeability of the very fact of damage occurring is a necessary and prior condition of legal liability. For "there is no negligence unless there was a corresponding duty of care" (Pritsker v. Fridmnan (2), at p. 682), and "the test of duty depends, without doubt, on what you should foresee" (Denning L.J. in Roe v. Minister of Health (5), at p. 84; cf. Denning J., in Minister of Pensions v. Chennel (6), at p. 253).

 

            On the other hand, it is clear and beyond dispute, that the absence of foreseeability as regards the extent and dimensions of the damage does not serve to prevent the imposing of liability, and even the unforeseen part of the damage will be charged to the person who negligently causes the damage: -

           

            "If the negligence were once established, it would be no answer that it did much more damage than was expected..." (Smith v. London and South Western Railway Co. (7), at p. 22).

           

            But the problem once more arises in the intermediate case, where the foreseeability is lacking, not in relation to the fact of the damage occuring nor in relation to its extent, but "in relation to the kind of damage", or to put it more accurately, in relation to the remarkable way in which, in this specific case, the injurious process worked. It should be added that there is no relationship between the two ways, the actual and the potential; for example, instead of the expected theft, there comes a flood! This group of cases parallels, in fact, what the Sages of the Talmud describe in a remarkably apposite definition:"The beginning was with negligence, though the end was through an accident", with the additional attribute that both of them are to be found within one "causal chain", that is to say, were it not for the negligence, the accident would not have happened. Take, for example, the well-known case of the "cot of bulrushes", which is the Talmudic "counterpart" to the English Polemis case (4), except that it preceded it by 1600 years. It is worthwhile examining that case, for it contains, in a concise passage, all the elements of the concept: -

           

            "A certain man deposited money with his neighbour, who placed it in a cot of bulrushes. Then it was stolen. Said R. Yosef: Though it was proper care in respect to thieves, yet it was negligence in respect to fire: hence the beginning (of the trusteeship) was with negligence though its end was through an accident, (and therefore) he is liable." (Babylonian Talmud, Baba Metsiah, 42a).

 

            "It once happened that a man deposited money with another who put it in a fence made of reeds. The money lay well hidden in a pocket within the fence, when it was stolen." The Sages said, "Although this is a proper safeguard against thieves it is not a proper safeguard against fire... and whenever a bailee is negligent at the beginning, though in the end its loss occurs through force (or accident) he is liable" (Maimonides, Chapter 4 of Milchot She'elah Pikadon, Halacha 6).

 

            Here there was a causal connection between the negligence and the accident, and the accident "comes because of the negligence", as the commentators say, for had he not left the money there, it would not have been stolen, for the thieves, apparently, did not look in other places. On the other hand, the law is different in the following case: -

           

            "If he (the bailee) was negligent - (sc. the negligence of the bailee to whose care the animal was entrusted, placing it in a stable improperly closed (Rashi, ibid.)) - and it went out into a meadow (sc. to graze), and died naturally .. .Raba in Rabbah's name ruled that he is not liable... not only is he not liable on the principle that, if the beginning is through negligence, and the end through an accident, one is not liable, but even on the view that he might otherwise be liable, in this case he is not. Why? Because we say what difference is there to the Angel of Death where one places the animal" (Baba Metsiah, 36b).

 

            Here there is no causal connection between the negligence and the accident, for the Angel of Death does not distinguish between "here" and "there", and would have taken his toll in the cowshed, too; so the keeper is not liable, even though he was negligent in keeping the cow in an unenclosed shed.

           

            This, in a nutshell, presents us with both sides of the Polemis principle, as will be explained later on, but with one important difference which should be emphasized right at the very outset: the Polemis rule concerned the duty derived from the law of torts; the rule of the "cot of bulrushes" concerned the duty in contract, a special contractual duty derived from the law of bailment. I shall consider this distinction at a later stage in the judgment.

           

5. To turn now to the Polemis case itself. What happened there was this:

 

            In February, 1917, the charterers hired the Greek vessel "Thrasyvoulos" from its owners, Polemis and Co., for the duration of the war, and transported cargo in it to North Africa. Clause 5 of the charterparty provided that at the end of the period of the charter, the charterers were to return the ship in the same condition as they received it from the owners, subject to ordinary wear.

           

            On July 17, 1917, the ship reached Casablanca with a varied cargo containing cases of benzine and petrol. Unloading by Arab workers and winchmen, taken on from the shore on behalf of the ship's charterers, began immediately, and preceded without a hitch for four days. On the fourth day, the 21st of the month, when the workers unloading the ship were about to bring up a number of cases from the hold on to the deck by means of a bridge of planks which had been set up by them for that purpose, a heavy board fell into the hold below, struck something, and, as a result of the blow, a spark ignited the petrol vapour escaping from inside the tins, there was a burst of flame, and the ship was destroyed by fire.

           

            Polemis and Co. demanded payment of the cost of the ship from the charterers, the charterers denied liability, and the matter came before arbitrators who were requested to give their judgment in the form of a case stated. In their statement of claim, the plain­tiffs accused the defendants of negligence causing the loss of the ship, but as an alternative ground, they relied on the duty of returning the ship which the defendants had taken upon themselves, as stated in clause 5 of the aforementioned charterparty. Paragraph 5 of the statement of claim, as quoted by McNair in his article, "This Polemis Business", published in the Cambridge Law Journal, Vol, 4, pp. 125-145, is as follows: -

           

"5. The Charterers are not relieved of liability for the negligence of the agents and/or servants or employees under the said charterparty and the Owners' claim for loss and damage occasioned to them by reason of the negligence aforesaid. Alternatively the Claimants say that the Charterers are liable in damages under Clause 5 of the said charterparty." (Loc cit., p. 127.)

 

            This means that Polemis was riding two horses at one and the same time - both on the law of torts and on the law of contract; and this should not be overlooked when coming to examine and criticize the Polemis decision.

 

            The arbitrators gave their judgment in the form of a case stated, and made the following principal findings of fact: -

           

"(a)  That the ship was lost by fire.

    

(b)   That the fire arose from a spark igniting petrol vapour in the hold.

 

(c)   That the spark was caused by the falling board coming into contact with some substance in the hold.

 

(d)   That the fall of the board was caused by the negligence of the Arabs (other than the winchmen) engaged in the task of discharging.

 

(e)   That the said Arabs were employed by the Charterers or their Agent the Cie. Transatlantique.

 

(f)   That the causing of the spark could not reasonably have been anticipated from the falling of the board though some damage to the ship might reasonably have been anticipated." (Ibid., p. 134.)

 

            The legal conclusion to be drawn from all those facts was left to the decision of the court; Sankey J. in the court of first instance, and the Court of Appeal, upheld the owner's claim, and held the "Thrasyvoulos" charterers liable to pay the cost of the ship. I do not know what the legal argument before Sankey J. was, but the arguments submitted to the Court of Appeal by counsel for the parties are known, and of these I shall note one: that which turned, in a somewhat curious manner, on the alternative versions and different texts that were discovered of Pollock C.B.'s dictum in the case of Greenland v. Chaplin (8). The charterers' counsel, Mr. Wright and Mr. Porter (who were later to become so famous as Law Lords), quoted the version appearing in the Exchequer Reports, according to which the judge had said: -

           

            "I entertain considerable doubt whether a person who is guilty of negligence is responsible for all the consequences which may under any circumstances arise, and in respect of mischief which could by no possibility have been foreseen, and which no reasonable person would have anticipated." ( at p. 248)

 

            On the other hand, Polemis' counsel produced the Law Journal Reports, in which Pollock C.B.'s words were quoted thus : -

           

            "I entertain considerable doubt whether a man is responsible for all the possible consequences that may, under any circumstances, arise in respect of mischief which by no possibility could he have foreseen, and which no reasonable person under any circumstances could be called upon to have anticipated." (19 L.J. (Ex.) 295.)

 

            Here, in the latter passage, there are missing the words, "who is guilty of negligence", meaning that, if his very conduct was negligent by dint of any foreseeable damage whatsoever, which could have resulted from it, he is liable for all actual damage which came about as a consequence of his conduct, even if he could not (at the time of the act) have seen "that which was to come about".

            Indeed, that was the rule which was accepted by the judges of the Court of Appeal, and on account of which they held the charterers liable to pay to Polemis the cost of that ship. Three Judgments were given by the three Lords Justices, and they all had the same purpose, though they did not express it in the same way: -

           

            "In the present case the arbitrators have found as a fact that the falling of the plank was due to the negligence of the defendants' servants. The fire appears to me to have been directly caused by the falling of the plank. Under these circumstances I consider that it is immaterial that the causing of the spark by the falling of the plank could not have been reasonably anticipated. The appellants' junior counsel (the reference is to Mr. Porter) sought to draw a distinction between the anticipation of the extent of the damage resulting from a negligent act, and the anticipation of the type of damage resulting from such an act... I do not think that the distinction can be admitted. Given the breach of duty which constitutes the negligence, and given the damage as a direct result of that negligence, the anticipation of the person whose negligent act had produced the damage appears to me to be irrelevant" (Bankes L.J. in Re Polemis (4), at pp. 571-572.)

 

            "The result may be summarised as follows: The presence or absence of reasonable anticipation of damage determines the legal quality of the act as negligent or innocent. If it be thus determined to be negligent, then the question whether particular damages are recoverable depends only on the answer to the question whether they are the direct consequence of the act." (Warrington L.J., ibid.,at p. 574.)

 

            "To determine whether an act is negligent, it is relevant to determine whether any reasonable person would foresee that the act would cause damage; if he would not, the act is not negligent. But if the act would or might probably cause damage, the fact that the damage it (the act) in fact causes is not the exact kind of damage one would expect is immaterial, so long as the damage is in fact directly traceable to the negligent act, and not due to the operation of independant causes having no connection with the negligent act, except that they could not avoid its results." (Scrutton L.J., ibid., p. 577; cf. Aldham v. United Dairies (London) Ltd. (9), per du Parcq L.J.,at p. 513.)

 

            It is stated here, "the fact that the damage it in fact causes is not the exact kind of damage etc". Does that exclude the case where the actual damage differs considerably from the expected damage? In my opinion, it does not. It seems to me that the expression, "is not exactly", is not in itself quite accurate, and the Polemis case itself demonstrates that. For it is impossible to say that the conflagration of the petrol vapour as a consequence of the falling of the plank is only not exactly the same damage that is usually expected whenever a heavy block of wood rolls over and falls from the deck to the ship's hold.

           

            That, therefore, was the Polemis rule, which was propounded 35 years ago in England by the Court of Appeal. Attempts have been made to express it concisely, and one of the coins that the learned have minted from that rule is the well-known dictum of the great American judge. Holmes: -

           

            "The tort once established, the tortfeasor takes the risk of consequences." (Oliver Wendell Holmes, Holmes-Pollock Letters, Vol. 2, p. 88, quoted by Lord Wright in "Re Polemis", (1957), 14 Modern Law Review 393.)

           

But if I am not mistaken, the correctness of that dictum has been attacked by one of the authors; with the very greatest respect, it contains something of a circulus vitiosus, for so long as you have not determined the liability for the consequences, you have not yet identified the tortfeasors. It appears to me that, if we really must search for and find a concise formula as a device against forgetfulness, then the most pungent one will be the Talmudic formula: -

 

            "The beginning was with negligence though its end was through an accident, and therefore he is liable – so long as the accident occurs because of negligence."

           

            Except that, as a consequence of transferring the word "negligence" from the law of bailment to the law of torts, a slight change will take place in its meaning, and instead of "a breach of the duty of guarding", will come "a breach of the duty of care." Subject to the differences flowing from that change, the Polemis rule will be identical with the rule of the "cot of bulrushes", with the addition of the rounding-off notion which was expressed in the picturesque saying: "What difference does one place or another make to the Angel of Death".

           

6. Now, having reached this point, let us see how that rule can be applied to the case under appeal. But before we do that, let us retrace our steps for a brief moment, and take one more look at the details of the case. There is no doubt that from the point of view of the remarkable course in which the events followed one upon the other, an accident of the kind with which we are faced is infinitely more rare, less expected, than that which happened to the Greek ship in the Polemis case. The arbitrators found that the firing of the spark by the falling of the board was something that could not have been foreseen, but we do not know, for example, what they would have said about the reasonable foreseeability of the onlooker, had the persons engaged in the matter been, not simple porters from Casablanca, but an expert group of chemists and physicists who know what the natural reaction of petrol vapour is, and what the temperature created by the falling and colliding of that solid body is likely to be. In the present case, we are freed entirely from the necessity of going into such questions and conjectures; here, indeed, they were not only laymen, but also experts, professional men - by which I mean the senior doctors who treated the deceased child - and it did not occur to them, nor did they imagine, that the contact with the ground at the place where there was the closed wound, would result several days later in the penetration of tetanus germs into the child's body. Conclusive proof thereof may be found in the fact that during the whole of those eight days, even after the necrosis occurred, they refrained - with their eyes wide open they refrained - from giving him an anti-tetanus injection; and if expert doctors thought on these lines, surely no more can be expected of an ordinary man in the street, such as the appellant Malka!

 

            In trying, therefore, to bring the actual facts of this case within the rules of the Polemis case as defined by us above, it is necessary to find, and we do find, that all the conditions of the rule are fulfilled:

           

(a) the beginning was with negligence - namely, the appellant's  negligent driving which was calculated, on any reasonable view, to run down and kill the child;

(b) its end was through an accident - namely, the child's death from tetanus, something which even the expert doctors could not foresee; and

(c) the accident came because of the negligence - for but for the injury to the arm, there would have been no necrosis and no penetration of the tetanus germs, and the child would not have died.

 

            The present case, therfore, fulfils with considerable accuracy all the conditions of the Polemis rule, and if we answer all three questions in the affirmative and reach the conclusions -

           

(a) that the Polemis rule is the rule applicable in England;

(b) that the decision also binds the courts in Israel;

(c) that this rule, mutatis mutandis, also applies to the offence under section 218,

 

we shall have no alternative but to confirm the appellant's conviction. Let us therefore, examine these three questions one by one.

 

7. Questions (a) and (b) arose in this court, from one point of view and to a certain degree, in Levi v. Mousaf (3), but in the end no decision was given on them as they called for further consideration and as was stated by Agranat J. at p. 570, there was no need to decide them in that appeal. As for the first question, Agranat J. states - and with respect, I agree with him - that : -

 

            "The rule laid down in the Polemis case has not been entirely crystallized in England . . . . . and has not yet had its final confirmation in the House of Lords" (p. 569).

 

            However, in the meantime (after judgment was given in the said case of Levi), the English Court of Appeal had the opportunity of dealing with this question once again, and it openly, and expressly, followed the decision laid down in the Polemis case while noting it as one which had not been shaken till this day. I refer to the judgment given in 1951 by the Court of Appeal in the case of Thorogood v. Van den Berghs and Jurgens, Ltd. (10), at pp. 690, 692, and if, indeed, a final ruling is not always established on the basis of two judgments, the accepted view is that for the time being, and for as long as the House of Lords does not intervene in the matter, the Polemis rule is to be regarded as the current rule on this subject in English law; and even its distinguished and strongest critic, Professor Goodhart in his brilliant article, "The Imaginary Necktie and Re Polemis", who wrote at the beginning of the article that: -

           

            "It may not be out of place to put forward… the view that Re Polemis is of doubtful ancestry and that its sterility during recent years has been of benefit to the law",

           

writes in another place that : -

 

            "Only in the House of Lords could the criticisms that had been advanced against the rule be taken into consideration, and its validity be open to question. Thorogood's case (10), is therefore conclusive on the point that Re Polemis is still alive, but there is nothing in Asquith L.J.'s judgment which can be regarded as an argument in favour of its continued existence" ((1952) 68 Law Quarterly Review 514, at p. 517).

 

            To sum up, if indeed the question what is the current rule on this subject in the courts of England, is of relevance for us, then the question has been answered - the Polemis rule !

           

8. I said. "If indeed the question is of relevance, etc.", and with that we reach the second question mentioned above, namely, whether or not the Polemis decision also binds the courts in Israel. The cautiousness of approach necessitated here is founded on the meaning to be attached to the provisions of section 60(a) of the Civil Wrongs Ordinance, and the question is whether the section should not be regarded as a clear and express departure by the Palestinian legislator from the ruling prevailing in English law.

 

            In form, this question resembles the question that arose (but was not settled) in Levi v. Mousaf (3). In substance it differs from it entirely. I will not attempt here to draw positive conclusions from the expressions to be found in the said section; I am aware of the considerable significance attaching to those expressions, having regard to the presence of both scientific exactitude and legal realism. I shall content myself here with a negative argument, and will endeavour to show that in that same section 60(a), the legislator did not intend, and could not have intended, to adopt the standard laid down in the Polemis decision.

           

9. I will explain my meaning. The great argument carried on between the judges and the authors over the confines of the Polemic rule is well-known; it is a "frontier dispute" which has never been settled to this day. One view, propounded apparently by some authorities, though very much in the minority, is that the Polemis rule refers only to breaches of contract. That is the opinion of Sargant L.J. in the case of Hambrook v. Stokes (11), which concerned a widower's action for the payment of damages for the death of his wife, caused as the result of the negligent act of the defendant: -

 

" …And In re Polemis and Furness, Withy & Co., dealt with a case in which there was a duty by contract between the plaintiff and the defendant, while here we have to determine, in the absence of contract, what is the extent of the duty of the defendant, and whether the plaintiff's wife fell within the area of the duty..." (at p. 164).

           

            That view is not entirely to be dismissed. Admittedly, no one can dispute the fact that in the Polemis case there were proper and well-ordered contractual relations between the owners of the ship and its charterers and, as we have seen above, the plaintiffs in that case even relied in their statement of claim on the duty of restoring the subject-matter of the charterparty as laid down in clause 5 of the agreement. Yet there was extra-contractual negligence on the part of the charterers, which was equally capable of rendering them liable to pay for the owners' damage. In the Hambrook case (11), on the other hand, the negligence was non-contractual, "pure and simple", as we have already seen. Sargant L.J.'s distinction, therefore, is not, with respect, entirely without foundation; and as for the correctness of its legal content, the scales of logic are decidedly balanced here, and it is possible to an equal extent to argue one way or the other: that the material is contractual rather than tortious, or that the material is tortious rather than contractual. A fair example of this equilibrium may be found in Lord Porter's article on "The Measure of Damages in Contract and Tort", in which these words of the American scholar, Sedgwick, are quoted:-

 

            "A just rule therefore would put upon a person who commits a tort the risk of all proximate consequences of his wrong, but upon him who breaks a contract such risk as he could have foreseen when he undertook the duty and this appears to be the conclusion of the law." ( Sedgwick on Damages, 9th Ed., p. 261, quoted in Lord Porter's article, The Measure of Damages in Contract and Tort, 5 Cam. L.J. 176, at pp. 185-186).

 

And Lord Porter himself replies in these words: -

 

            "But is the rule necessarily just? One might, I should have thought, as readily transpose the wording of the statement and say one who commits a tort has the obligation to be careful imposed upon him by the general law, and therefore should be subject only to liability for damage which he can foresee as likely to follow from his negligence, whereas he who breaks a contract voluntarily exposes himself to a risk he need not have undertaken and therefore should incur all the proximate consequences of his voluntary act" (ibid. p. 186).

 

            It is obvious that common sense cannot decide the matter here, and that Sargant L.J.'s opinion, too, has logic on its side. It should not be forgotten that the Polemis case concerns property placed in the hands of the defendant, and that is also a ground for making the rule stricter, for the liability here is for an event, anticipated or unanticipated, which prevents any possibility of the owners getting their property back. Perhaps it would be proper to make use here, mutatis mutandis, of the judgment that was delivered by an English judge as early as 1881 - a judgment applying, as it were, the Polemis rule which was yet to be born, to the special duty of the bailee towards the owner. That case concerned goods which the bailee (or depositee) had transferred to another place of safekeeping, where they were burned without any fault on his part; the judge said: -

 

"I think the plaintiff is entitled to judgment.... The defendant was entrusted with the goods for a particular purpose and to keep them in a particular place. He took them to another, and must be responsible for what took place there. The only exception I see to this general rule is where the destruction of the goods must take place as inevitably at one place as at the other." (Grove J., in Lilley v. Doubledcry (12); vide Georke T. Washington, Damages in Contract at Common Law, 48 L.Q.R. 90, at p. 105, note 83; cf. judgment of Grove J. in Sharp v. Powell (13), at pp. 259-260).

           

            A rule was laid down here strikingly resembling the above-mentioned Talmudic ruling. Before us is a rule of bailment, in the spirit of the principle of the "cot of bulrushes", juxtaposed with the "exception" of "what difference does one place or another make to the Angel of Death" (on the assumption that the actual transferring from place to place is "negligence"). And as we saw earlier, that indeed is the Talmudic rule which is the counterpart to the Polemis rule. Here is the link and the bridge between the two cases.

           

            To be quite accurate, in order to avoid any misunderstanding as regards that comparison, I wish to say further that, if indeed the rule, "the beginning was with negligence though its end was through an accident, and therefore he is liable", applies principally to matters of bailment (cf. Babylonian Talmud, Baba Metsiah, 36^b, 42^a, 93^b; Maimonides, Chapter 4 of Hilchot She'ela ve-Pikadon, Halacha 6 ; Chapter 3 of Hilchot Schirut, Halachot Schirut, Halachot 9, 10 : Shulhan Aruh Choshen Mishpat, Art. 291, 9), nevertheless, in its periphery, it has penetrated somewhat into the field of torts, torts of property, that is, property that causes damage (Babylonian Talmud, Baba Kama, 21^b, 56^a ; Maimonides, Chapter 2 of Hilchot Nizkei Mamon, Halacha 15; Shulhan Aruh, Hoshen Mishpat, Art. 390, 12; Art. 396, 1). The reason is that here too is something analogous to the "law of bailment", for, according to the sources of Hebrew law, liability for the torts of property which cause damage arises from the fact that "its safekeeping is your responsibility" (Baba Kama, 9^b).

 

            It is possible, therefore, to place the rule on a single notional basis, and say: "The Talmudic Polemis rule, namely, the rule that the beginning was with negligence though its end was through an accident, and therefore he is liable, is confined neither to contracts nor to torts; it has become linked to matters pertaining to the duty to safeguard property, whether it is someone else's property and the duty is to safeguard it against damage, or whether it is one's own property and the duty is to keep it from causing damage."

           

            Noting that in the concrete instance of Polemis, also, there was a duty to safeguard property, it would be desirable to try and regard the Polemis rule from this aspect also. That would raise the number of possible interpretations of the Polemis rule to four.

           

            10. To return to the interpretation given by Sargant L.J., I shall conclude by noting the fact that that interpretation has not found any response among lawyers, and that they have passed it over without any discussion worthy of the name. Two schools of thought remain: one holding the view that the Polemis rule is limited to cases of tort only, and the other holding that it applies both to tort and to contract. We shall see later that in order to decide the specific question with which we are engaged, we do not need to adopt either position in that dispute, but will draw out. conclusions for the most part from the arguments themselves that have been put forward for and against in that debate.

           

            Let us see how those views were expressed and what were the reasons upon which they were based. Scrutton L.J.'s view (which assumes special significance from the fact that he was, as will be recalled, one of the judges who sat in the Polemis case) was that the application of the Polemis rule is limited to actions in tort only. These are his words:

           

"The real distinction is, I think, between a tort, thedamages for which do not require notice to the wrongdoer of their probability, and contract, where Hadley v. Baxendale requires the consequence to be in the contemplation of the parties" (The Arpad (14), at p. 526; cf. Liesbosch v. Edison (15), at p. 461).

 

            Whatever the precise meaning of the terms "probability", "notice of their probability" and "contemplation" may be, one thing is clear, namely, that in the opinion of Scrutton L.J., the application of the Polemis rule, to which he was very obviously referring in the first half of the passage, is limited to cases of tort alone.

           

            And we learn one thing more, the great importance of which will later become apparent, and that is that the measure of liability imposed according to the Polemis rule is not identical with the measure of liability that was imposed, a hundred years ago, in Hadley v. Baxendale (16). It follows that whoever defines the measure of liability of a tortfeasor in terms that were used in Hadey v. Baxendale, testifies to the fact that he himself does not believe in the Polemis doctrine and that he wishes to have nothing to do with the stricter measure of liability laid down in that decision.

           

            The judgment in the case of Hadley v. Baxendale was delivered in 1854 by Alderson B, and to this day the judge and his judgment are referred to with the greatest respect; the decision is regarded as a classic ruling, sound and wellfounded, which is beyond appeal and beyond question. For the sake of accuracy, I shall quote it here exactly as it was written in the original:

           

            "Now we think the proper rule in such a case as the present is this: Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it" (at p. 151).

 

            It is stated here: "either - or", but it is clear that to the extent that I have spoken in this judgment of applying the principle in Hadley v. Baxendaie to torts, the intention was, of course, to the first alternative, namely, to the limiting of the tortfeasor's liability to such damage as may fairly and reasonably be considered as damage, "arising naturally, i.e., according to the usual course of things", from the tortious act itself.

 

            The question of the relationship between the Hadley rule and the Polemis rule has played and still plays an important part in the great debate taking place over the Polemis rule's "area of jurisdiction": whether it is limited to tort cases, or whether it also covers cases of breach of contract. Professor McNair, for instance, in his article, "This Polemis Business", referred to earlier, expresses the opinion that the Polemis rule is limited to cases of tort, saying: -

           

            "In short, I submit that, in the light of the foregoing documents, the Polemis decision is not an authority upon the measure of damages for breach of contract and must be confined in its effects to the law of tort; the shipowner's claim was pleaded alternatively in contract and in tort, but they obtained judgment in tort. In support of this submission I beg to make the following comments upon the case: -

           

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

           

            "10. The judgments of the Court of Appeal (Bankes, Warrington and Scrutton, L.JJ.) are familiar to all readers, and it is unnecessary to make more than two comments. (i) Throughout they treat the action as a claim for damages for negligence, that being the cause of action upon which Sankey J. gave the judgment appealed from.(ii) Nowhere do they refer to Hadley v. Baxendale, which it would have been impossible to ignore if they had been laying down a principle governing the measure of damages in tort and in breach of contract alike, and which, decided in the Court of Exchequer, has since been recognised by the Court of Appeal and is so well established that even the House of Lords would hesitate to disturb it."

 

            In his footsteps another author, in a very profound article dealing with the question of damages in contract at common law, states: -

           

"Hadley v. Baxendale was at once recognised as the leading authority in this branch of the law, and it still maintains its position. That position as Dr. McNair has mustered persuasive evidence to show, will doubtless remain unaffected by the decision of the Court of Appeal in the Polemis case... Whatever the validity of Re Polemis as a case in tort, it cannot affect the authority of Hadley v. Baxendale, in the field of contract" (George T. Washington, op. cit., at p. 105).

 

            Professor Goodhart, too, in the aforementioned article, shows that the view prevailing among those learned in the law of contract is that the Hadley rule and not the Polemis rule holds sway in the field of damages in contract. Although Professor Goodhart himself shares the opinion that the judges in the Polemis case intended to spread the net of that decision over both cases of tort and contract, he uses that approach itself to attack the very rule in Polemis, and thus proves how very wrong the judges in the Polemis case were in ignoring the classic ruling laid down in Hadley v. Baxendale, or treating it as of no effect. For the consistent idea passing like a silken thread through his brilliant article is that Polemis and Hadley v. Baxendale cannot live under one roof. Thus, he states:

           

            "It is difficult, therefore, to see how the rule in Polemis can be reconciled with that in Hadley v. Baxendale, however much we may strain the language used in the latter judgment" (loc. cit., p. 521).

           

            "...there are only two possible solutions to the problem we are considering: either Polemis and Hadley v. Baxendale must be heard to mean the same thing, which will require a feat of the greatest mental ingenuity by the re-interpretation of Hadley v. Baxendale, or Polemis must be held to have been incorrectly decided, as I believe it was" (ibid., p. 522).

 

            The upshot of all that - and that is the first link in the chain of legal conclusions necessary for deciding this appeal - is that the Polemis test and the Hadley test are not the same thing, and that there is a difference both in degree and in kind between the two said measures of liability.

           

 12. I said earlier, in paragraph 6 of this judgment, that if we make use of the Polemis rule as the correct standard by which to determine the criminal liability of the appellant under section 218, we must uphold his conviction for that offence. Now, let us put to ourselves the question, which may perhaps seem at this moment to be purely academic, and that is, what would have been the present appellant's fate if it had been provided somewhere in the statute or case law that in fact liability under section 218 is to be examined in the light of the test of Hadley v. Baxendale? (I am referring, of course, to the fact alternative in it).

 

            It seems to me that the question has but one answer, and that is that the appellant in this case would be found not guilty. I am at one with those who think that, in the final analysis, and after peeling off all the layers that have encrusted it, the test of the Hadley rule is a test of "foreseeability" (see Goodhart, loc. cit., p. 511; and examine closely the words of Cheshire and Fifoot, Law of Contract, 3rd edition, p. 493). The latter part of the rule confirms the earlier part, for there is no real difference between foreseeability and contemplation, so far as the actual principle of the need to foresee is concerned.

           

            Now, since the foreseeability as regards the very fact of damage occurring is, as we have seen earlier, a prior, necessary condition for the operation of the Polemis rule as well, the corollary that divided the two rules can only be this: that according to the Hadley rule, the foreseeability must embrace not only the very fact of damage occurring, but also the "kind" of damage, as distinct from its "degree", as I explained in paragraph 4 of this judgment.

           

            It follows that if mutatis mutandis we are to examine the liability of an offender under section 118 according to the civil test of Hadley v. Baxendale, we should have to acquit the appellant. For when that rule is applied to the present case, the "foreseeability as regards the character of the fatal result" becomes a requisite for conviction here, and in the present case there is not a shadow of doubt that the character of the actual result, namely, the child's death from tetanus as a consequence of the penetration of germs into the body three full days after its contact with the ground, was so remarkable and rare, so unusual and abnormal, that no reasonable man could have anticipated it - as the evidence of the doctors proves - and here there was certainly no adequate or sufficient link between the actual and potential result of the accident.

 

13. So we reach the decisive question: what is the standard by which to measure the liability of a person accused of an offence under section 218 of the Criminal Code Ordinance? That question divides itself into two:

 

(a)        How is that measure of liability related to the measure of liability employed in the law of torts - does it differ from it, or is it the same?

 

(b)        If it is said that it is the same, then what are the principles prevailing in the law of torts in Israel law as regards the problem before us?

 

            The second question, as I have already implied, turns on the interpretation to be given to the provision in section 60(a) of the Civil Wrongs Ordinance, and briefly put, the question is whether that provision contains within it the Polemis test, or not.

           

14. As far as the first question is concerned, the answer is that it is the same. No one will be found guilty of an offence under section 218, unless he has failed to fulfil his duty of care towards the victim, to the extent to which such failure would have obliged him to pay damages if a civil action in tort had been brought against him for the very same act of negligence. This conclusion clearly follows from the rule laid down by the majority of the judges of this court in the appeal of Rotenstreich (1), above mentioned. It makes no difference whatsoever whether the matter under consideration is (as it was in the case of Rotenstreich) the question of the offender's liability towards a trespasser, or whether it is (as in this appeal) the question of the measure of liability for the results flowing from his act of negligence; for both of them shelter beneath the shade of one central idea. The learned judge was fundamentally right, therefore, when she sought the solution to the problem among the sources of the civil law concerning the law of torts.

 

15. Turning now to the second question, which concerns the proper meaning of section 60(a), I have reached the conclusion that the provision in that section expresses, not the Polemis principle, but rather the "opposing" principle, that is, the one laid down in Hadley v. Baxendale. It is very easy to demonstrate this: we have only to carry out a sort of "comparison of handwriting", that is to say, a comparison of the text of section 60(a) with the text of the Hadley rule, in order to recognise that simple and obvious conclusion.

 

            The text of the Hadley rule, namely, the first part which can be transferred, mutatis mutandis, to the law of torts, is :-

           

            "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or..."

 

Whilst the language of section 60(a) of the Civil Wrongs Ordinance is: -

 

            "(a) where the plaintiff has suffered damage compensation shall only be awarded in respect of such damage as would naturally arise in the usual course of things and which directly arose from the defendant's civil wrong."

 

            We see that section 60(a) follows word for word the test laid down, as regards foreseeability, in Hadley v. Baxendale. Moreover, it seems that the additional condition also (as regards the causal connection) stated in the first part, namely, "and which directly arose from the civil wrong", is none other than the adequate "counterpart" to the corresponding first part of the Hadley rule - damage "arising... from such breach of contract itself". All that the interpreters of the term "directly" have up to now succeeded in their wisdom in suggesting as its meaning is, that there has been no novus actus interveniens between the cause and the effect, and it seems to me that that is the purport of the words, "damage arising from such breach of contract itself" (Chitty on Contracts, 21st edition, p. 411; Goodhart, op. cit., p. 530; James-Perry, op. cit., pp. 804-805; 62 Corpus Juris 1115; Clerk and Lindsell on Torts, 9th edition, pp. 135-143 ; cf. Lord Sumner in Weld-Blundell v. Stephens (17), at pp. 983-984 ; De Grey C.J., in Scott v. Shepherd (18), at pp. 528-529).

           

            Identity of text and definition is at all times and in all places a sure sign of identity of content, and the conclusion to be drawn is that the Palestinian legislator adopted not the Polemis rule, but its "opposite", in section 60(a).

           

            This is not to be wondered at, and no tears need be shed over it. The Polems principle is full of difficulty and stumbling-blocks, and has never enjoyed the loud plaudits of writers in the law. Only the force of precedent and "the power of the spoken word" have managed to continue its unwanted existence in England, and thus it will remain until expressly overruled by the House of Lords. The Palestinian legislator was free from those shackless, and so substituted for the Polemis rule the more reasonable rule in Hadley v. Baxendale. And it may be truly said that there is nothing novel in that, that it is not the first time it has happened, and that a great English judge once said that Hadley v. Baxendale is a rule covering both cases in contract and cases in tort (Lord Esher M.R., in The Argentino (19), at p. 916).

           

16. To sum up: earlier in this judgment we put forward these three basic conclusions : -

 

(a)   that the measure of liability according to section 218 is the same as the measure of civil liability applicable in the law of torts ;

 

(b)   that section 60(a), which deals with the measure of liability in tort for the consequences of an act determines that measure according to the test of Hadley v. Baxendale;

 

(c)   that in the light of the Hadley v. Baxendale test, the present appellant is not liable for the fatal consequence that flowed, in the course of an unusual series of events, from his act of negligence.

 

            And the final conclusion to be drawn therefrom is that the appellant has not committed the offence set out in section 218 of the Criminal Code Ordinance.

           

            Accordingly, I think that the appeal should be allowed and that the conviction and sentence should be quashed.

           

GOITEIN J., I agree.

 

BERINSON J., I agree.

 

Appeal allowed. Conviction and sentence set aside.

Judgment given on October 24, 1956.

 

F.H. 5/63

 

           

ATTORNEY-GENERAL

v.

DANI WEIGEL

 

 

In the Supreme Court sitting as a Court of Criminal Appeal

[October 31, 1963]

Before Olshan P., Berinson J., Cohn J., Manny J. and Halevi J.

 

 

 

Construction of statute - prostitution offences - mandatory imprisonment - exclusion of probation - Penal Law Amendment (Prostitution Offences) Law, 1962, sec. 10-Probation of Offenders Ordinance, 1944, sec. 3 (2).

 

            The respondent was convicted at first instance of being a procurer under section 1(b) of the Penal Law Amendment (Prostitution Offences) Law, 1962, but owing to the special circumstances of the case he was not given a prison sentence but put on probation. An appeal to the Supreme Court having failed, the Attorney-General applied for a Further Hearing* regarding the construction of the said section 10 in the light of section 3 (2) of the Probation of Offenders Ordinance, 1944. The sole issue was whether a person convicted under the Law must be sentenced to imprisonment or may instead be put on probation.

           

Held by a majority (1) An "offence punishable by imprisonment or fine" to which the Probation Ordinance applies is descriptive of the kind of offence for which probation is available. Such an offence does not cease to be of that kind if the penalty is expressly mandatory. "Punishable" is not restrictive so as to exclude a mandatory penalty.

 

(2) A section of the Law under which "a penalty of imprisonment shall be imposed" is intended (upon sentencing) to exclude a penalty as the sole penalty which is not imprisonment. Probation as such is not a penalty and therefore falls outside the ambit of the section.

 

(3) To oust existing sentencing powers and restrict the rights of the individual, particularly in criminal matters, express statutory provision is necessary. Section 10 contains such an express provision as regards conditional imprisonment but not as regards probation.

 

(4) Probation is a method of treatment alternative to imprisonment, intended to assist in the rehabilitation of offenders. Ever since its introduction it has not conflicted with but complemented imprisonment

 

(5) The cases of prostitution offences in which the courts will direct probation rather than impose imprisonment are very rare. Indeed it would defeat section 10, if they did so to any appreciable extent.

 

Israel cases referred to:

 

(1)       Cr.A. 69/63-Attorney-General v.Dani Weigel (1963) 17 P.D. 712.

(2)       Cr.A. 26/55-Rahel and Yaakov Shakraji v. Attorney-General (1955) 9 P.D. 378.

(3)       Cr.A. 44/52-Kassem Hasin Diab v. Attorney-General (1952) 6 P.D. 922.

(4)       H. C. 186/62- B. Veider v. Minister of the lnterior and others (1962) 16 P.D. 1547.

(5)       Cr.A. 38/61-Moshe ben David Yitzhak v. Attorney-General (1962) 16 P.D. 514.

(6)       Cr.A. 155/59-Yaakov Darai  v. Attorney-General (1960) 16 P.D. 233.

(7)       Cr.A. 24/55-Attorney-General v. Barukh Salmander and others (1954) 8 P.D. 474.

(8)       Cr.A. 558/62-Morris Rabo v. Attorney-General (1963) 17 P.D. 162.

(9)   Cr.A.-234/53 Tel Aviv-Yafo Attorney-General v. Avraham ben Yitzhak HaGoel (1955) 11 P.M. 84.

 

English case referred to:

 

(10)     R. v. Parry and others (1952) 2 All E.R. 1179.

 

Z. Bar-Niv, State Attorney, for the appellant.

B. Shagia for the respondent.

 

OLSHAN P.               The sole issue before us is the construction of section 10 of the Penal Law Amendment (Prostitution Offences) Law, 1962, in the light of section 3 (2) of the Probation of Offenders Ordinance, 1944 (hereinafter referred to as "the Ordinance").

 

  Sections 1 and 3 of the said Law define various prostitution offences and prescribe the penalties therefor by the following formulae:

           

"Shall be liable to imprisonment for a term of five years" (sections 1, 2 and 5);

 

"shall be liable to imprisonment for a term of three (five) years"

(section 9);

 

"shall be liable to imprisonment for a term of seven years" (section 3).

 

Then comes section 10 which provides:

 

"Where a person has been convicted of an offence under section 1, 2 or 3 of this Law, a penalty of imprisonment shall be imposed upon him, either as the sole penalty or in conjunction with another penalty, but conditional imprisonment shall not be imposed upon him."

 

            In Attorney-General v Weigel (1), the subject of the present hearing, a majority of the judges were of the opinion that section 10 does not prevent the court from applying section 3 (2) of the Ordinance which generally speaking empowers the court, in the event of a person being punishable with imprisonment or fine, to make a probation order instead of sentencing him. Relying on the phrase "shall be imposed" in section 10, the judge in the minority had no doubt that the section places a duty on the court to impose a sentence of imprisonment, either as a sole penalty or in conjunction with another penalty, and that the court is commanded by the legislature, where a person is convicted under section 1, 2 or 3, to impose a penalty and may not let him go free without any penalty, that is to say, that it is impossible to put him on probation in place of imposing a penalty.

           

            According to the interpretation given by the majority therefore the court must first consider in the light of section 3 (2) of the Ordinance whether or not any penalty is to be imposed and only if it thinks that a penalty should be imposed must it be imprisonment. The minority view was that where a person is convicted of a prostitution offence under section 1, 2 or 3 the court is not free to consider whether or not to impose a penalty but is commanded to impose the penalty of imprisonment.

           

            After hearing counsel representing the parties, I have reached the conclusion that the law is with the minority judge. The submissions of Mr. Bar-Niv, the State Attorney, appeal to me for the following reasons.

           

 (1) The words "shall be imposed" appear to me to be in the imperative mood. A distinction must here be made between "imprisonment shall be imposed" and "shall be liable to imprisonment"; in all the sections of the Criminal Code Ordinance, 1936, the penalty-fixing formula is "is liable to" and only in one section "shall be sentenced" (cf. sections 49, 50, 213 and many others together with section 215 before amendment). Ever since the establishment of the State, whenever the first above formula was intended the legislature employed the words "shall be liable to imprisonment" and whenever the second was intended it used the words "the court shall impose" or "shall be imposed".

 

            Where "is liable to" occurs, the convicted person may be punished with imprisonment and the question of its length will only arise when the court comes to the conclusion that a probation order should not be made in place of imposing a sentence. Were the majority's interpretation of section 10 to be accepted, the legislature would not have needed to use the words "shall be imposed" and it could have adopted the formula "he shall be liable...". Section 10 would also then have been unnecessary.

           

            Having found it proper to use the "shall be imposed" formula in section 10 instead of the "shall be liable" formula in section 1, 2 and 3 of the Law, then - and this is a canon of interpretation - the legislature is not to be assumed to have done so inadvertently. According to the interpretation proposed (by the respondent) we must ignore the words "shall be imposed" and read in place thereof "shall be liable".

           

(2) According to that interpretation also, the opening words "Where a person has been convicted..." must be read as if they said something like "Where a penalty has been imposed under section 1,2 or 3, the penalty shall be imprisonment... but conditional imprisonment shall not be imposed". But significance attaches to the words "Where a person has been convicted". They instruct the court what to do with the defendant after conviction, that is, after conviction a penalty is to be imposed and he is not to be allowed to go free without penalty. We are not at liberty to ignore the legislature's formula and replace it with another consistent with the said interpretation.

 

(3) Why the legislature found it right to add the words "but conditional imprisonment shall not be imposed" but not also "no probation order shall  be made", the answer, it seems to me, is that the purpose of the section is to prescribe the obligatory nature of the penalty from among the various penalties found in our law, such as fines, conditional imprisonment and others. It was necessary to exclude conditional imprisonment expressly because according to Shakraji v Attorney-General (2) imprisonment by itself includes conditional imprisonment. Had the legislature not excluded conditional imprisonment a court could comply with section 10 by imposing the latter-a course not welcome to the legislature. On the other hand, a probation order is not a penalty; section 3 (2) of the Ordinance says that "the court may, in lieu of sentencing him, make a probation order". Hence, the court being bound to impose the penalty of imprisonment, it was not essential to mention the Ordinance which enables relief from penalty.

 

(4) Purposively there is no great difference between a probation order after conviction and conditional imprisonment. The object of a probation order was explained in the judgment of my honourable friend, Berinson J., in Weigel (1) at 719, and I have nothing to add. It seems to me that the imposition of conditional imprisonment is also founded on the belief that if the defendant is given the opportunity, he will mend his ways and refrain from his law-breaking. Upon the enactment of the Penal Law Amendment (Modes of Punishment) (Amendment No. 5) Law, 1963, the identity of the two drew even closer (apart from supervision by a probation officer). Section 7 (4) (b) and (5) (b) provide that if a probationer is convicted of another offence during the period of probation the court may sentence him for the offence for which he was placed on probation. That means that exemption from penalty and placing on probation are subject to the possibility of being sentenced for the first offence, if a breach of the probation order occurs or another offence is committed during probation. According to sections 18D and 18F added in 1963, when a further offence is committed, the court is not bound to activate the conditional imprisonment but may extend it for an additional period. In activating the conditional imprisonment, the court may also order that the sentences be concurrent. Conditional imprisonment is thus directed to those instances where there is a belief or expectation that its imposition instead of actual imprisonment will help the defendant to mend his ways. That belief and expectation exist when a probation order is made. I do not however say that this identity of purpose should be decisive in interpreting section 10. If it is clear from this section that the legislature directed the court to impose a term of imprisonment upon an offender convicted under sections 1, 2 and 3, since in spite of its high purpose, the imposition of conditional imprisonment has, on any view, also been forbidden by the legislature.

 

(5) In association with the opening words "Where a person has been convicted", the marginal heading to section 10, "Mandatory imprisonment", means that once convicted of an offence under sections 1, 2 or 3, an obligation arises to impose imprisonment. In general, where the section of a statute is clear, there is no need to refer to the marginal heading; only those who plead that the meaning is obscure will need to do so. In my judgment no such necessity occurs here, but if it does, it supports the conclusion drawn by the minority judge. The question which arises in connection with this submission is the extent to which the marginal heading is part of the law. In Diab v. Attorney-General (3) Silberg J. indicated (at 926 and 928) the difference that exists in this regard between England and ourselves. It has long been normal in England to embellish a statute with headings and marginal headings after it has been adopted by the legislature. Silberg J. held, after comparing Mandatory legislation, that "there is nothing to prevent us from obtaining 'interpretative inspiration' from the headings". He said

 

"We see therefore that everything revolves round the cardinal question whether these headings and 'embellishments' have or have not been brought to the attention of and approved by the legislature, whether they have or have not received official approval. The traditional English view is that for Parliament there is only the archaic statutory roll which leads the reader on without name or description, without marginal headings and punctuation, and anything which it does not or need not include is not part of the statute, a kind of incidental nugatory addition by 'irresponsible' people who have no hand in the law-making of the legislature".

 

The question is therefore what is the situation with regard to Israeli legislation. When a bill is presented to the Knesset, it includes marginal headings. That may be seen from the copies before the Knesset at the second and third readings... . In the bill of the Law so presented, section 10 had the marginal heading "No penalty of a fine alone" and the words "but conditional imprisonment shall not be imposed upon him" did not appear in the body of the section. During the debate the Minister of Justice mentioned that there were lighter penalties as well as probation orders and he proposed that the section be deleted. Others objected to deletion and suggested that the above words should be added and their suggestion was accepted. The Law as adopted and then published contained section 10 in its present form. If the Law in the second and third reading contained marginal headings, it is to be assumed that the value of the heading we are concerned with was the same as that of the others. I do not need to lay down any hard and fast rule as to whether or not the marginal headings are part of the Law since there are decisions on the question in respect of Israeli legislation. In Voider v. Minister of the Interior (4) it was said (at 1551) that

 

"There is no need to deal with the question whether or not marginal headings are part of the Law, since in any event no authority was cited to show that even if they are not, some bar exists against taking them into account when considering the object of the section in connection with its interpretation."

 

In Yitzhak v. Attorney-General (5) the court said (at 523) that

 

"Although possibly sometimes - when the language is not plain enough and ambiguous - headings may help, it is quite a different matter to base on them an additional offence having no connection at all with the clear definition given in the body of the section."

 

It seems to me that here the marginal heading certainly does not help respondent's counsel in his endeavour to replace "shall be imposed" with "shall be liable", or to introduce before "shall be imposed upon him" the words "upon being sentenced".

 

            In Darai v. Attorney-General (6) the appellant was convicted of an attempt to unlawfully cause the death of a person under section 222 of the Criminal Code Ordinance, 1936. Counsel argued that the prosecution must prove "malice aforethought" as in murder and he relied upon the marginal heading "Attempt to murder". That is, he tried to read into the section the element of "malice aforethought" in view of the word "murder" in the heading. He did not succeed. In the case before us indeed the marginal heading is at one with the provisions of the section and not in conflict. Hence words which do not appear therein are not to be introduced.

           

 (6) The Law relating to assaults on policemen, where a minimum term of imprisonment is also provided, has been cited at length. In Attorney-General v. Salmander (7) this Court decided that that Law is lex specialis and its provisions set aside, implicitly if not expressly, the general provisions contained in the Criminal Code Ordinance, 1936, in as far as the two sets of provisions are inconsistent. (The problem there was whether it is possible to impose on an offender convicted under the said Law a fine according to section 42 (1a) or a recognizance to keep the peace according to section 45 of the Criminal Code Ordinance.) It appears to me that the Probation of Offenders Ordinance, 1944, also contains general provisions whilst the Law concerning prostitution is lex specialis. The former was enacted at a time when there were no laws prescribing "mandatory imprisonment". Accordingly, upon the enactment of a special Law on prostitution, section 3 (2) of the said Ordinance must be read subject to this special Law. If it patently emerges from the wording of section 10, in the context of the other sections, that upon a conviction for prostitution the offender receives mandatorily a prison sentence, it cannot be argued that the section must be treated as containing something which it does not contain, only because the legislature did not expressly exclude the application of section 3 (2) of the Probation Ordinance, particularly when this special Law deals with the imposition of penalties whereas the Ordinance deals with probation which is not a penalty.

 

            In Salmander (7) this Court held that the minimum imprisonment prescribed is a penalty which cannot be reduced, that is, it is mandatory, notwithstanding the use of "shall be liable" (and not "shall be imposed"). The meaning of "shall be liable" in the Law there is that an offender may be punished by imprisonment up to the prescribed maximum but must be punished with the minimum term of imprisonment.

           

            In view of the decision in Salmander we must say, and we may not ignore the fact, that the question whether the offender may be held free of all penalty and be put on probation according to the Ordinance was not raised in this appeal. Relying on Attorney-General v. HaGoel (9) - that the provisions of the Law relating to assaults on policemen do not prevent making a probation order instead of imposing a penalty - one may say that "shall be liable" to a minimum term of imprisonment (as obligatory) becomes operative only after the court takes the view that a probation order is not to be made in place of imposing a penalty, since this Law does not employ the language of section 10 ("Where a person has been convicted... shall be imposed"). There is no need to take up any position on the merits of the argument itself.

 

(7) Section 1 of the Penal Law Revision (Abolition of the Death Penalty for Murder) Law, 1954, abolishes the death penalty for murder and provides that "Where a person has been convicted of murder, the court shall impose the penalty of imprisonment for life, and only that penalty". Here everyone, other than respondent's counsel who must differ if he is to be consistent, agrees that the possibility of making a probation order instead of imposing the penalty is excluded. The argument here is, however, that that is because of the addition of "and only that penalty". This argument, it seems to me, is groundless. If a probation order is not a penalty, then the words cited do not form a provision excluding probation as an alternative to imposing the penalty. Consistently with the suggested interpretation of section 10, this section would also have to be read as if providing "Where a person has been convicted of murder, and the court is of the opinion that he is not to be exempted from penalty and put on probation, the court shall impose the penalty of imprisonment for life, and only that penalty". That is, if a penalty is imposed it must only be life imprisonment. It follows that there is no connection between the words added and the prohibition against making a probation order. The prohibition stems from the words "Where a person has been convicted... the court shall impose", which is similar to the language used by the legislature in section 10, and not from the words "and only that penalty". If the fact that probation has no place in murder is not disputed, then I see no justification for adopting a different interpretation in section 10.

 

(8) As I have said, "shall be liable" is generally used by the Israeli legislature in place of the Mandatory "is liable" and "shall be imposed upon him" in place of "shall be sentenced". That there is a difference in meaning between the two phrases used by the Israeli legislature is not to be disputed, and I have not heard of any other meaning attributed to "shall be imposed upon him" to distinguish it from "shall be liable". Prostitution offences were specified in many of the sections of the Criminal Code Ordinance, 1936. In treating some of these offences with particular stringency because they are increasingly plaguing the country, the legislature repealed the sections of the Criminal Code Ordinance, 1936, and replaced them with the Law in question, as lex specialis. In this Law section 10 is devoted to the offences mentioned in sections 1, 2 and 3. Although the penalties for offences under sections 5. 6 and 9 were increased the normal course was followed and words of command or mandate were not employed. With regard to these latter offences nothing was said limiting the discretion of the court in choosing the penalty or even in making a probation order. The intention of the legislature, it seems to me, is thus clear. What is involved is the principle of strict construction in favour of the offender, and this principle is not impaired since any other interpretation of section 10 is artificial and cannot be sustained without introducing words which the section does not contain.

 

(9) Assuming that after enacting the Probation of Offenders Ordinance the Mandatory legislator had amended section 215 of the Criminal Code Ordinance by providing that "upon conviction shall be sentenced to imprisonment for life", in my judgment there would have been no room for the argument that a probation order could be made instead of life imprisonment. The Probation Ordinance is not a "constitutional" law in the light of which all other law is reviewed. That being so, the two Laws must be reconciled, having their respective legislative intent in mind. Plainly, the 1944 Probation Ordinance does not embrace any intention to give section 3 (2) an entrenched position for the future. Had that been the intention, it would have been wholly invalid from the viewpoint of constitutional law. It is therefore to be understood that as regards the future the intention of the Ordinance was that use of section 3 (2) is subject to every new Law which can expressly repeal it or restrict its thrust with regard to some particular offence by prescribing that when an offender is convicted thereof he is to be sentenced by imposing the penalty of imprisonment. But such an intention would have to be clearly expressed in the new Law. Thus we return to the meaning of section 10 which appears to me to be so clear that we may not say to the legislature that, although the meaning is clear, we will ignore the clear intention simply because it did not expressly state that section 3 (2) of the Probation Ordinance is not to apply. To that the legislature would say that the presumption is that it was aware of section 3 (2) of the Ordinance and the failure to mention the necessary words - rightly or not, and as I have said above I think rightly - is not a ground justifying disregard of the clear meaning of section 10.

 

            The many reasons for rejecting the suggested interpretation of section 10 are not evidence that it is not clear or is ambiguous. The many reasons are the consequence of the many arguments advanced which in themselves do not prove that the intention of the legislature is not plain.

 

            In my judgment the appeal should be granted and imprisonment imposed upon the respondent.

           

BERINSON J.                        In the previous hearing of this matter we heard exhaustive arguments from the Deputy State Attorney, Mr. Bach, and the late Mr. Toussia-Cohen on the main issue, the interpretation of section 10 of the Penal Law Amendment (Prostitution Offences) Law, 1962, and its relation to section 3 (2) of the Probation of Offenders Ordinance, 1944. The majority and minority judgments appear to me not to have passed over any point worthy of attention, In this Further Hearing the State Attorney appeared and repeated in fact these arguments but more expansively and with the coherence normally characteristic of him. I have no intention of depreciating the value of his submissions by saying briefly that I have found nothing to move me to change my previous view which I explained at length in the earlier hearing. I shall therefore confine myself to a number of brief observations.

 

            In this Further Hearing the question is whether section 10 of the Prostitution Offences Law can stand alongside section 3 (2) of the Probation of Offenders Ordinance, 1944, so that the provisions of the latter are applicable notwithstanding section 10, or whether section 10 ousts the application of section 3 (2). The question turns on the meaning to be given to "offence punishable with imprisonment" in section 3 (2). The view has been voiced that "punishable" refers only to offences for which the court may impose imprisonment and not to offences for which imprisonment is mandatory. I cannot agree to this interpretation. In my opinion, the phrase involved describes a group of offences in respect of which a probation order may be made instead of imposing a penalty (imprisonment or fine) and it is immaterial how the court comes to impose the penalty on the offender, whether permissively or mandatorily. An "offence punishable with imprisonment" does not cease to be such when the imprisonment is mandatory.

           

            The President says that had it not been the intention of the legislature to direct the court to impose a penalty, and precisely the penalty of imprisonment, for prostitution offences under sections 1- 3 of the Law to deny the possibility of making a probation order in place of imposing a penalty, it would not have adopted the imperative mood in section 10, "shall be imposed", and generally there would have been no need for this special section since it had already prescribed for the specific offences the maximum penalty of imprisonment by the terms "shall be liable to imprisonment". I have another explanation. Section 10 is not superfluous in the least because it is intended to limit the kinds of penalties which a court is empowered to impose for prostitution offences. When it imposes a penalty, it must impose the penalty of imprisonment (whether or not in conjunction with another penalty) but no other penalty can serve as a substitute to imprisonment. That, in my opinion, is the meaning of the mandatory imprisonment in section 10. It does not, however, negative the alternative of putting the offender on probation which is not a penalty and may replace it.

 

            The State Attorney persists in arguing that if section 10 of the Prostitution Offences Law does not entirely exclude the possibility of making a probation order, then the same rule should apply also to murder with regard to which the legislature employs exactly the same terms in directing in section 1 of the Penal Law Revision (Abolition of the Death Penalty for Murder) Law, 1954, that where a person has been convicted of murder the court shall impose life imprisonment and that alone. The terms of this Law indeed make it difficult psychologically to accept the view that I have propounded, although an important difference exists between the two Laws. In the first, the penalty is mandatory imprisonment (with or without some other penalty) but the court is completely free to fix the term of imprisonment /is no other penalty. If, however, it is said that this important difference is not determinative for the question before us, then, there being no option, I would not hold back from saying that both should be treated alike and in both a probation order may be made instead of imposing imprisonment. Until the adoption of the Law abolishing the death penalty for murder no difficulty occurred. When the Probation of Offenders Ordinance was enacted in 1944, it was clear that it did not apply to murder. At that time and until its abolition in 1954, death was the only penalty for murder and the Ordinance did not apply because it only covered offences for which the penalty was imprisonment or fine. When the Knesset abolished the death penalty and replaced it with life imprisonment but did not say anything about probation, murder also became "an offence and punishable with imprisonment" within the meaning of section 3 (2) of the Ordinance. It is difficult to imagine a case in which the court would in fact exercise this power but theoretically it is available as it then was in the case of manslaughter the penalty for which was life imprisonment, and today as well when it is a term of 20 years' imprisonment.

 

            In my earlier judgment I explained the view why it cannot be contemplated that by adopting section 10 of the Prostitution Offences Law the legislature intended to avoid indirectly the possibility of placing a person upon probation instead of sentencing him to imprisonment, and I do not need to go over that again. Had the Knesset so desired it would have needed to say so expressly, as it did regarding the non-imposition of a conditional sentence in place of actual imprisonment.

           

            My view remains as it was and in my judgment the Further Hearing should be dismissed and the majority opinion of the previous hearing upheld.

           

HALEVI J.                  The question before us is the relationship between section 10 of the Penal Law Amendment (Prostitution Offences) Law, 1962 (hereinafter referred to as "the Prostitution Offences Law") and section 3 (2) of the Probation of Offenders Ordinance, 1944 (hereinafter called "the Probation Ordinance"). Are these two enactments compatible? And if not, which takes precedence?

 

            Sections 1, 2, 3, 5, 6 and 9 of the Prostitution Offences Law define various offences and prescribe for each the maximum penalty which an offender may receive by the formula "shall be liable". Regarding offences under sections 1-3 the legislature goes on to prescribe by section 10, that "where a person is convicted... a penalty of imprisonment shall be imposed..., either as the sole penalty or in conjunction with another penalty, but conditional imprisonment shall not be imposed". The meaning of this provision - and in this regard I join in the view of the President and Cohn J. without hesitation - is that mandatory imprisonment is laid down for the offences mentioned.

           

            On the other hand section 3 (2) of the Probation Ordinance provides that "where any person is convicted... upon information of an offence punishable with imprisonment or fine, and the court is of the opinion that, having regard to the circumstances, including the character, the antecedents, age, home surroundings, health or mental condition of the offender, the nature of the offence and any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may, in lieu of sentencing him, make a probation order".

 

            In view of these two sections, the question arises of the relationship between section 10, imposing mandatory imprisonment, and section 3, empowering the court to release an offender on probation instead of sentencing him to prison. Can the two sections exist side by side or are they conflicting? And if they are conflicting, which takes precedence? Opinions are divided and each has some foundation.

           

            One view is that neither affects the other since they concern different things - "a penalty" and "probation" which is not a penalty. Section 10 prescribes "mandatory imprisonment" as the penalty for any person convicted of an offence under section 1 or 2 or 3 of the Prostitution Offences Law, thus restricting the judge's discretion in choosing between different penalties - imprisonment, conditional imprisonment or fine - when sentencing the offender. Section 3 (2) on the other hand does not affect the content of the sentence and the kind of penalty which is to be imposed. It allows the judge in given circumstances to refrain from sentencing and instead make a probation order. According to this outlook there is no conflict between the two sections, but if any substantial inconsistency does exist, section 3 (2) of the Probation Ordinance prevails.

           

            Another view urges that section 10 of the Prostitution Offences Law contradicts and sets aside section 3 (2) of the Probation Ordinance. The provision in section 10 that "where a person has been convicted...a penalty of imprisonment shall be imposed" obliges the judge convicting the defendant to impose a penalty and that penalty has to be imprisonment. The judge will not be doing his duty if he exercises his normal power under section 3 (2) of the Probation Ordinance "to release the offender on probation... in lieu of sentencing him". The duty to impose imprisonment upon any one convicted of one of the offences referred to in section 10 deprives the judge of the power to put the offender on probation. Inevitably, according to this view, in the conflict between section 10 of the Prostitution Offences Law and section 3 (2) of the Probation Ordinance section 10 prevails.

           

            The matter is therefore open to debate but upon consideration the first view seems to me to be preferable to the second. My reasons are as follows.

           

            The Prostitution Offences Law is to be read and understood against the background of the Penal Law Revision (Modes of Punishment) Law, 1954. Section 1 of that Law provides that

           

"A court which has convicted a person of an offence may impose on him any penalty not exceeding the penalty prescribed by law for that offence".

 

Section 10 provides that

 

"Where the law prescribes imprisonment and does not prescribe a fine, the court may -

...        

(3)...impose imprisonment as prescribed or a fine not exceeding IL 5,000 or both such penalties; provided that where the law makes imprisonment obligatory or prescribes a minimum period of imprisonment, imprisonment shall not be replaced by a fine".

 

Section 18 before amendment in 1963 provided that

 

"(a) Where the court may impose a penalty of imprisonment, it may, in lieu thereof, impose conditional imprisonment".

 

And after amendment, that

 

"(a) Where the court imposes a penalty of imprisonment, it may, in the sentence, direct that whole or part of such penalty shall be conditional"

 

Section 25 as amended provides that

 

"The court which has convicted a person may, in addition to the penalty imposed, order the person sentenced to bind himself by recognizance to abstain from an offence for such period not exceeding three years as the court may prescribe".

 

            These sections taken together prescribe the great rule as to modes of punishment in Israel, that every penalty prescribed by any criminal law is a maximum penalty and that the legislature entrusts to the judge the task to prescribe in his discretion the penalty appropriate to each case both as regards the kind of penalty and as regards its extent, as appears to him to be right and proper. Section 10 of the Prostitution Offences Law makes an exception from this general rule. Apart from this section, a court convicting someone under section 1, 2 or 3 of the Law might, in view of the sections of the Modes of Punishment Law set out above, impose a penalty of imprisonment as prescribed in the section dealing with the offence in question or conditional imprisonment or a fine of up to IL 5,000 or a combination of such penalties with or without recognizance. But then section 10 comes along and provides that

           

"Where a person has been convicted of an offence under section 1, 2 or 3 of this Law, a penalty of imprisonment shall be imposed upon him, either as the sole penalty or in conjunction with another penalty, but conditional imprisonment shall not be imposed upon him".

 

The effect and significance of section 10 is to restrict the judge's freedom of choice as between the kinds of penalties mentioned in the Modes of Punishment Law to imprisonment with or without "another penalty" such as fine or recognizance (and according to Rabo v. Attorney-General (8), also conditional imprisonment). The sole penalty prescribed by section 10 is (unconditional) imprisonment for the offences in question and in this sense the marginal heading that sums up the section, "Mandatory imprisonment", is correct.

 

            As for the wording of section 10 - "Where a person is convicted of an offence... imprisonment shall be imposed upon him" - it is proper to notice the similar wording of section 1 of the Modes of Punishment Law - "A court which has convicted a person of an offence may impose on him any penalty" (Cf. also section 10 of this Law - "Where the law prescribes imprisonment ... the court may impose"). This parallelism to my mind strengthens the view I have taken that section 10 of the Prostitution Offences Law is to be read in the light of sections 1, 10 and 18 of the Modes of Punishment Law. In order to depart from the maximum-penalty rule laid down in the Modes of Punishment Law (sections 1 and 10) section 10 of the Prostitution Offences Law says that "Where a person has been convicted of an offence... a penalty of imprisonment shall be imposed upon him, either as the sole penalty or in conjunction with another penalty". In order to exclude section 18 of the Modes of Punishment Law in its original version, section 10 employs the same terms but adds "but conditional imprisonment shall not be imposed upon him". The phrase "Mandatory imprisonment" in the margin to section 10 repeats also the language of the end part of section 10 of the Modes of Punishment Law, that "where the law makes imprisonment obligatory... imprisonment shall not be replaced by a fine".

 

            It seems to me that the main purpose of section 10 is merely to exclude the offences mentioned therein from the provisions of the Modes of Punishment Law which give the court freedom of choosing between kinds of punishment in its discretion. Section 10 varies the normal "modes of punishment" by prescribing "mandatory imprisonment" for given offences. But it does not deal with or affect the placing of offenders on probation. As my honourable friend, Berinson J., said, probation is an "alternative" to penalty, a point stressed in section 3 (2) by the words "in lieu of sentencing him". According to that section, the judge must before making the probation order explain its meaning to the offender and inter alia that "if he fails... to comply therewith or commits another offence, he will be liable to be sentenced for the original offence". When sentence is pronounced for the original offence (in the event of a breach of the probation order etc.) section 10 of the Prostitution Offences Law will apply and imprisonment will be imposed. Section 10 does not set aside the provisions of the Probation Ordinance nor compel the judge to give a sentence since section 3 (2) of the Ordinance empowers him to abstain from doing so and to put the offender on probation. Section 10 lays down provisions binding as regards the content of the sentence but not as regards to the circumstances in which it is or is not to be given according to an enactment not referred to therein.

           

            Section 3 (2) of the Probation Ordinance applies to every offence "punishable with imprisonment or fine". It cannot be argued that these words are confined to an offence for which just"imprisonment or fine" are prescribed, excluding mandatory imprisonment. The meaning is undoubtedly "an offence punishable by imprisonment or an offence punishable by fine". The word "punishable" also does not restrict one to a penalty which is not "mandatory". Section 3 (2) of the Probation Ordinance was copied with some small variations from section 1 (2) of the (English) Probation of Offenders Act. 1907. which provides inter alia that

 

"Where any person has been convicted on indictment of any offence punishable with imprisonment. ... the court may, in lieu of imposing a sentence of imprisonment, make an order etc.".

 

Until the enactment of the Criminal Justice Act, 1948 (which replaced the 1907 Act) there was no general statute in England which enabled all the courts to impose a fine instead of imprisonment for commission of a felony. Section 13 of the Criminal Justice Act provides that

 

"Any court before which an offender is convicted on indictment of felony (not being a felony the sentence for which is fixed by law) shall have power to fine the offender in lieu of or in addition to dealing with him in any other manner in which the court has power to deal with him".

 

In R. v. Parry (10) Lord Goddard C.J. (at 1180) explained the history of section 13 as follows.

 

"The history of that section and the reason for importing it into the Criminal Justice Act, 1948, is well known. There were certain felonies, principally those under the Larceny Act, 1916, in which a court of summary jurisdiction had power to fine. That was because it was considered desirable in the case of petty thefts that a court should be able to fine the offender and not send him to prison, but in cases which came before a court of assize or quarter sessions on indictment there was no power to fine until this Act of 1948, except in the case of manslaughter. The reason for that was that the offence of manslaughter varies enormously in seriousness according to the circumstances in which it is committed. Over and over again judges have had to deal at assizes with an offence which technically was a felony, where they would have been glad to have imposed a fine had there been power to do so. The court was often left in the position that it had either to send a person of hitherto good character to prison for a comparatively small offence or else bind him over, which was to inflict no punishment. That is the reason why Parliament by the Act of 1948 gave to courts trying cases on indictment the same powers as courts of summary jurisdiction formerly had in certain cases and now have in all cases of felony, i.e., the power of imposing a fine instead of sending to prison."

 

            Thus until 1948 the penalty for most felons in England was "mandatory imprisonment" in the sense of the last part of section 10 of the Modes of Punishment Law and section 10 of the Prostitution Offences Law. Nevertheless the English courts were never denied the power to release a person convicted of any offence apart from murder by binding him over, with or without sureties, to come up for judgment, a course which served as an alternative to sentencing him and imposing mandatory imprisonment. (See the judgment of Lord Goddard in the case cited above and Archbold, Pleading, Evidence and Practice in Criminal Cases, 35th ed., paragraph 722.) Another alternative to sentencing was introduced by section 1(2) of the Probation of Offenders Act, 1907 (mentioned above) which empowered the courts to release on probation any person convicted of an offence "punishable with imprisonment", other than those for which the penalty was death. In view of the statutory situation in England until 1948, "punishable with imprisonment" in section 1 (2) of the Probation of Offenders Act, 1907 (which served as the pattern for drafting of section 3 (2) of the 1944 Probation of Offenders Ordinance) included also, and mainly, offences for which imprisonment was mandatory. The intention of the English legislature was to give the courts a new alternative (far more important than the old one of binding over) to imposing mandatory imprisonment on an offender who seemed to merit and be suitable for probation. Throughout the subsistence of the original English Probation Act (from 1907 until 1948) there existed therefore side by side "mandatory imprisonment" and "probation" applicable to the same offences, and not only were they not in conflict but complementary, serving as the legislature had intended, as alternative methods for the courts. There is no reason for attributing a different relationship between mandatory imprisonment under section 10 of the Prostitution Offences Law and probation under section 3 (2) of the Probation Ordinance.

           

            The English Probation Act of 1907 was, as I have said, replaced by the Criminal Justice Act of 1948, section 3 (1) of which provides inter alia that

           

"Where a court by or before which a person is convicted of an offence (not being an offence the sentence for which is fixed by law) is of opinion etc. ... the court may, instead of sentencing him, make a probation order"

 

            Section 80 of the same Act defines

 

" 'Offence the sentence for which is fixed by law' means an offence for which the court is required to sentence the offender to death or imprisonment for life or to detention during His Majesty's pleasure".

 

An offence "for which the court is required to sentence the offender to... imprisonment for life" is non-capital murder under section 9 of the Homicide Act, 1957. Section 3 (1) of the 1948 Act does not directly affect the matter before us and I have only mentioned it in order to show that even under existing English law, a probation order can be made in every criminal offence apart from murder and those for which life imprisonment is prescribed.

 

            I see no need to express an opinion regarding the interpretation of the Penal Law Revision (Abolition of the Death Penalty for Murder) Law, 1954. Even if the legislature did not realise the need for amending the Probation Ordinance as a result of the abolition of the death penalty for murder there is yet a vast difference between life imprisonment as a mandatory penalty (see section 2 of the Modes of Punishment Law) and mandatory imprisonment for one day prescribed by section 10 of the Prostitution Offences Law. Whatever the position regarding mandatory life imprisonment, there is nothing in section 3 (2) of the Probation Ordinance to suggest that mere "mandatory imprisonment" with which we are concerned excludes an offence from the operation of the Ordinance.

           

The existing legislation regarding the modes of punishment is not of one piece and even if all the difficulties concerning the different enactments in this area have as yet not been resolved, no far-going conclusions in law are to be drawn from that. Accordingly it appears to me that one should not infer from the lack of reasonableness in applying the Probation Ordinance to murder for which the penalty is mandatory life imprisonment, that this Ordinance does not apply to every other offence the penalty for which is mandatory imprisonment.

 

            Since section 3 (2) of the Probation Ordinance does not distinguish between imprisonment which is mandatory and that which is not, the legislature's intention to deny the application of the Probation Ordinance, if it had such intention, should have found expression in section 10 of the Prostitution Offences Law. In order to ascertain the legislature's intention I do not need to rely on the speeches in the Knesset during the debate on the section. According to the usual rules of interpretation, express statutory provision is necessary to negative lawful judicial powers, particularly in criminal matters. The judicial power under section 3 (2) of the Probation Ordinance to release a person convicted on information for an offence punishable by imprisonment and to put him on probation is not negated by any express provision of section 10 of the Prostitution Offences Law. In the judgment of my honourable friend, Cohn J., in Weigel (1) the legislature's intention to deny the existing powers under the Probation Ordinance is implied from the word "Where a person has been convicted... a penalty of imprisonment shall be imposed upon him", which he construes as "Where a person has been convicted... a penalty of imprisonment shall be imposed upon (but he shall not be released on probation) and the penalty shall be imprisonment (and no other penalty)". With all respect, this seems to me mere inference since there is no "automatic penalty". Section 10 does not say that "notwithstanding the provisions of any other enactment" the penalty of imprisonment shall be imposed. In my view, so fundamental a matter as the setting aside in part of the method of probation cannot rest on inference without express statutory provision, since it restricts the powers of the court, the rights of the individual in criminal matters and the functioning of a probation service intended to rehabilitate the offender and turn him into a useful citizen.

 

            Nevertheless I do find myself bound to stress what my honourable friend, Berinson J., said at the end of his judgment in Weigel, that in offences of the kind in question it will be "most rare" for the court actually to exercise its power to place an offender on probation. The Prostitution Offences Law of 1962 was intended to treat procurers of various kinds with severity and it was found fit in the public interest to increase the penalty to five or seven years' imprisonment, to make imprisonment mandatory and to direct that it should not be commuted to conditional imprisonment. Probation officers and judges would make the Law a sham, were they to go on using probation for offenders who come within section 10. I have mentioned probation officers since under section 3 (2) of the Probation Ordinance, as amended, a court is not to make a probation order until it has received the opinion of a probation officer. Moreover, under section 19(a) of the Modes of Punishment Law, the court may, before imposing a penalty, require a written report by a probation officer, and under section 19(b), as amended, the court may not impose a penalty of unconditional imprisonment on an offender who had not reached the age of 21 at the time when the offence was committed until such a report has been received. Section 19(c) provides that "in a report as aforesaid, the probation officer may recommend to the court the type of penalty which, in his opinion, offers prospects of reforming the prisoner". Thus the probation officer plays an important role when the court effectuates probation and in this sense he is "a partner of the judge", although it is the latter who has the last word. It is in general difficult for an appellate court to interfere with the discretion of a judge who decides to place an offender on probation, and the question whether the learned District Court judge in the present case was right does not arise. In any event, apart from exceptional instances, the right place for procurers and those who promote prostitution is prison.

 

            For these reasons I propose to confirm the decision of the majority in Weigel (1) and to dismiss the appeal.

           

MANNY J.                 I concur in the judgments of my learned brothers, Berinson J. and Halevi J., and join in the conclusion they have reached.

 

COHN J.                     I disagree with the premise of my honourable friend, Halevi J., that section 10 of the Penal Law Amendment (Prostitution Offences) Law is to be read and construed against "the background" of the Penal Law Revision (Modes of Punishment) Law. For me, the opposite is the case: the entire object of section 10 is only to take out the penalties mentioned therein from the rules prescribed in this Law regarding punishment for all other kinds of offences. It is very true that section 10 is not intended to affect the rule of the maximation of penalties and to this extent the general law applies to it, but it is intended expressly and unambiguously to affect the alternation of penalties, and just as it decrees "mandatory imprisonment" excluding fine and conditional imprisonment, it also decrees imprisonment excluding modes of treatment which do not come within the meaning of penalty.

 

            Likewise I do not draw the analogy which my honourable friend, Halevi J., has drawn between "may impose" in the Modes of Punishment Law and "shall be imposed" in the Prostitution Offences Law. I agree wholly with the learned President that the imperative of "shall be imposed" is not to be ignored, in contrast to the permissiveness and discretion of "may impose". Here as well, the opposite is the case: whilst the Modes of Punishment Law gives the judge a discretion as to the severity of the penalty he may impose, the Prostitution Offences Law denies him that discretion since, whatever he may wish to do, imprisonment shall be imposed.

 

            As I suggested in my previous judgment in this matter, it seems to me that the question of interpreting section 3(2) of the Probation of Offenders Ordinance, 1944, does not arise at all. The appellant's fate must, in my opinion, be decided according only to the interpretation of section 10 of the Prostitution Offences Law; and on the correct interpretation of this section there is no place for applying this provision of the Probation Ordinance whatever its interpretation, because section 10 excludes the application of any statutory provision which empowers the court to deal with a person convicted of an offence under the Law in any manner other than by imposing imprisonment alone.

           

            Accordingly I come to the same conclusion as the learned President and adhere to his view.

           

Further Hearing dismissed by a majority and the majority decision in the previous hearing upheld.

 

Judgment given on October 31, 1963.

 

* Under section 8 of the Courts Law, 1957, a Further Hearing by five or more judges of the Supreme Court will be granted "in view of the importance, difficulty, or novelty" of a ruling of the Supreme Court sitting with three judges.

 

 

C.A. 2034/98

Yitzhak Amin

v.

1.  David Amin

2.  Batya (Sara) Amin Sharabi

3.  Avraham Amin

 

 

The Supreme Court Sitting as the Court of Civil Appeals

[October 4, 1999]

Before Justices T. Or, I. Zamir, and I. Englard

 

Petition to the Supreme Court sitting as the Court of Civil Appeals.

 

Facts: Three children, orphaned of their mother, were emotionally abandoned by their father, who refused all contact with them. The emotional neglect caused them severe psychological damage that continues to impede on their adult lives. The children sued their father in tort for emotional damage and won at the district court. The father appealed.

 

Held: The father’s severe emotional neglect of his children breached his duties under the Legal Capacity law, which, inter alia, requires parents to provide for the educational needs of their children. Education includes equipping children with the basic life skills. A parent must act for the benefit of his or her child, with the care that an ordinarily devoted parent would use. The severity of the father’s neglect constituted a breach of his duty of care, giving rise to an action in tort based on breach of statutory duty. Justice Or wrote to note that the egregiousness of the father’s behavior made this case unique, and that in future cases, courts may have to draw more precise lines delineating parental duties.

 

Appeal denied.

 

For the appellant—Yisrael Shalev

For the respondents—Shlomo Kochli and Sara Sharvad

 

Appeal of the judgment of the Tel-Aviv-Jaffa District Court (Judge H. Stein) on 26 June 1998 in Civil Case 1016/98. Appeal Denied.

 

Legislation Cited:

Torts Ordinance [New Version], ss. 4, 35, 36, 63.

Legal Capacity and Guardianship Law, 5722, ss. 15, 16, 17, 22.

Penal Law, 5737-1977, ss. 323, 362, 365.

Interpretation Law, 5741-1981, s. 7.

Courts Law [Consolidated Version], 5744-1984, s. 79A.

 

Regulations Cited:

National Insurance Regulations (Determining Levels of Disability for Victims of Work Accidents), 5716-1956 (Addendum), ss. 34(e), 34(f).

 

Israeli Supreme Court Cases Cited:

[1]        CA 245/81 Sultan v. Sultan, IsrSC 38(3) 169.

[2]        CA 549/75 Anonymous v. Attorney General, IsrSC 30(1) 459.

 

American Cases Cited:

[3]        Burnette v. Wahl, 588 P. 2d 1105 (1978).

[4]        Courtney v. Courtney, 413 S.E. 2d 418 (1991).

 

Israeli Books Cited:

[5]        2 A. Barak, Parshanut Bimishpat [Interpretation in Law],     Parshanut Hachakika [Statutory] (1993).

 

Israeli Articles Cited:

[6]        G. Tedeschi, Mashber Hamishpacha Vichasidei Hamesoret [Family     Crisis], in Mechkarei Mishpat Lizecher Avraham Rosenthal 282 (G.    Tedeschi, ed., 1964).

 

Jewish Law Sources Cited:

[a]         Psalms 103:13.

[b]        Yevamot 70:1.

[c]         Deuteronomy 32:11.

[d]        Rashi, Commentary on Deuteronomy 32:11, “As an eagle stirs up its nest”.

[e]         Lamentations 4:3.

[f]         Rashi, Commentary on Lamentations 4:3, “Even the jackals”.

[g]        Maimonides (Rambam), Mishnah Torah, Halchot Deot (Laws of         Characteristics) 7:10.

[h]        Song of Solomon 8:7.

[i]         Leviticus 19:18.

[j]         Babylonian Talmud, Tractate Sota 8:2.

[k]        Babylonian Talmud, Tractate Baba Metzia 51:1.

[l]         Babylonian Talmud, Sanhedrin (Courts) 45:1; 52:1-2.

[m]       Naftali Hertz Wiesel, Exegesis of the Book of Leviticus.

[n]        Rabbi Yosef Karo, Shulhan Aruch, Yoreh Deah 240:1, 3, 8, 18.

[o]        Rabbi Moshe Isserlish,  Commentary on Shulchan Aruch, Yoreh Deah 240:1, 8, 18.

[p]        Shiftei Cohen, Yoreh Deah 240:18.

[q]        Torei Zahav, Yoreh Deah 240:1.

                                               

 

 

JUDGMENT

Justice Y. Englard

 

 

Are children entitled to compensation from a father whose neglect caused them severe emotional damage? This is the exceptional question we must decide in this appeal. Following an extensive, detailed, and in-depth discussion of the different aspects of the issue, the district court, in an opinion by Justice H. Stein, answered that question in the affirmative. This issue is rare not just in our system of law but in other legal systems as well. A single prior decision addressing this issue was cited in the lower court, and a majority of judges in that opinion dismissed the claim.

 

I am referring to the decision by the Supreme Court of Oregon in the United States, Burnette v. Wahl Or [3]. The district court was un-persuaded by the explanations of the majority opinion in that case, preferring Justice Linde’s dissenting opinion. It may very well be that the district court’s decision obligating the father to pay compensation for the emotional harm he caused his children by neglecting them constitutes a global precedent. It may also be true, however, that the facts of this case are exceptional in their severity.

 

1. The facts surrounding the case of the Amin family are indeed extreme and tragic. I will describe them in abridged summary, based on the lower court’s findings. The father has three children, a daughter and two sons (Sara, David, and Avi). Not long after the birth of the younger boy, the mother committed suicide. The children stayed with their grandmother for a short time, but that home was experiencing distress, and the welfare authorities transferred the children to educational institutions. Until they reached their majority, the children went back and forth from institution to foster family to institution, and from institution to institution and back again. The children were separated from each other. Their fate was poor and bitter. The older they grew, the more they deteriorated into lives of drug abuse and crime. One son started a family but is unable to work and lives off monthly National Insurance payments. The other son wandered from job to job, unable to keep a place of employment for long. The daughter married and divorced. She has six children: the eldest was given up for adoption, and the others were put in group homes; their mother’s drug abuse renders her unable to care for them. The tragedy of the children passes from generation to generation.

 

2.  In their bitterness and distress, the sons and daughter point accusatory fingers at their father; he turned his back on them throughout their childhood and youth and continues to do so today. The children sought and pleaded for fatherly attention, for a modicum of warmth and concern and care, and for any measure of interest in them and in their lives from their father, but they hit a brick wall. The severance was intentional and absolute. It became clear that the primary reason for the separation originated in an agreement the father made with his second wife, in which he promised to build their new home with no foundations from the past: The father would cut off all connection with his children from the previous marriage, and his wife would do the same to her children from a previous marriage. The couple executed this “agreement” with such stringency, they did not allow the children to enter their home, and the children’s few visits to their grandmother met with loud disapproval from the father and the stepmother. Their eyes full of yearning, the children watched how the father showered his love on the two sons born to him by his second wife and ensured their education. And they were neglected and left to care for themselves!

 

 

3.  The complaints – the cries – of the children are backed by testimony of social workers who took care of them. The court emphasized the testimony of Ms. Shoshana Samak, a social worker who cared for the Amin children:

 

When I received the children, they told me that they used to sit for hours by the fence of their father’s home. He would not open the door for them and would ignore them when he saw them in the collective village. In our line of work, we mix the therapeutic component with an emotional connection between the children and a relative. These children were completely cut off and received only feelings of rejection from every direction. As a social worker, I therefore had to take my children to attend Avi’s birthday in the morning. I desperately tried to get the grandmother and father to come, but they systematically ignored the invitations. During my tenure, no one visited the children in the institutions. The father unequivocally did not visit … our complaint against the father is that he denied his fatherhood of the children and absolved himself of all responsibility for their emotional suffering. Pp. 13-15 of the judgment (emphasis in original).

 

…

 

Every trip to the collective village was a setback in the children’s progress. They would return traumatized. I don’t know how to define it. Id.at 13.

 

On September 5, 1978, another social worker, Mr. Avraham Rachamim, wrote to the Ministry of Labor and Welfare (exhibit 3):

 

From their childhood, the children stayed in various institutions while the father completely ignored them. Every attempt by our office to involve him in their care and custody failed. Mr. Amin’s second wife adamantly refuses to allow them into the house, such that for years there has been no connection between the father and the children. P.16 of the judgment (emphasis in original).

 

Mr. Yoel Ben-Yehuda, the head of social services in the Gezer Regional Council, described the children’s plight in his testimony:

 

On a scale of 1 to 10, with 10 being the worst, I would classify the Amin children’s case as a 10. P. 18 of the judgment.

 

Mr. Naftali Drazner, Director of the Raziel Institute in Herzliya where Sara was a resident, wrote to the father on May 21, 1979 (exhibit 5):

 

We have no choice but to write to you and draw your attention to the behavior of your daughter, Sara. It is true that, in the four years in which Sara has lived in the village, you have not visited the place nor expressed interest in her studies and behavior. However, because her behavior has worsened lately, we have seen fit to bring the issue to your attention, so that you will also be aware of it. P. 18 of the judgment.

 

The court also noted additional testimony by Mr. Drazer:

 

I remember turning to the family to tell them that Sara refuses to eat, and that we cannot be responsible for her health if she persists in her refusal. To the best of my recollection, the family did not respond. We had almost no connection with the family. P. 18 of the judgment (emphasis in original).

 

4. The experts testified to the severe psychological damage that the children suffered as a result of their father’s behavior.

 

      The court adopted the opinion of Dr. Shabtai Noi, a well-established expert in clinical and educational psychology who issued an expert report on behalf of the respondents (no opposing report was offered). Dr. Noi assessed the level of disability using the percentages established in the addendum to the National Insurance Regulations (Determining the Disability Level for Employment-Related Injuries), 1956. Dr. Noi determined that David and Avi had a disability level of 50% under Section 34(e) of the Addendum and that Sara had a disability level of 70% under Section 34(f) of the Addendum. Dr. Noi found David to be an intelligent person and determined that:

 

I have no doubt that David’s disability is connected to and stems directly from the extreme way in which his father rejected him, his father’s cruelty toward him, and the lack of parental care throughout his childhood … in effect, he constantly lived in his father’s shadow, with sporadic visits which revived in him, with renewed intensity each time, the need for a father and the burning frustration from being rejected and deprived of a parental relationship. The image of this adult shaped his personality into what it is today. P. 5 of the report.

 

Dr. Noi noted that memories of Sara’s sporadic contact with her father had a “quality of traumatic memory which causes disability” (p.6 of the report) and he summarized her situation in the following way:

 

I am of the opinion that Sara demonstrates disability and tremendous suffering which were undoubtedly caused both by lack of care as well as active cruelty against her. Id.

 

Regarding Avi, Dr. Noi found that “He has post-traumatic thoughts about his past.” P.9 of the report. Dr. Noi summarized his report in the following words:

 

The personalities of the three siblings are characterized by a sense of trauma in their past which constantly endangers them with a flood of feelings too powerful for them to control … for all three, this state of affairs causes severe disability which may never be able to be corrected.

 

In addition, the personalities of all three are at a childish stage of development … the formal definition is personality disorder. It is difficult for children to grow in the absence of parental support. With their post-traumatic background, it is not clear if they will be able to develop even today. What is clear is that for the three, the developmental delay and the post-traumatic difficulty are related to their past, to the lack of parental support and what it is supposed to impart to a child, as well as the active cruelty toward them. P. 50 of the judgment, pp 9-10 of the report.

 

5. The father’s impenetrability regarding his children shocks the spirit. Our moral sense cries out against the cruelty of this estranged behavior. Isn’t the compassion of a father toward his children a basic natural feeling, common to the entire human species? Indeed, the Jewish psalms say: “As a father has compassion for his children,   so the Lord has compassion for those who fear him.” Psalms 103:13. And the sources add: “This nation is distinguished by three characteristics: They are merciful, bashful and benevolent. ‘Merciful,’ for it is written, And shew thee mercy, and have compassion upon them, and multiply thee.” Yevamot 70:1 [b]. Even in nature, there is an instinctive feeling of this sort, as we learn from the Bible: “As an eagle stirs up its nest, and hovers over its young; as it spreads its wings, takes them up, and bears them aloft on its pinions.” Deuteronomy 32:11 [c]. And Rashi, in his commentary on Deuteronomy 32:11, “As an eagle” [d], says: “He guides them with mercy and pity like the eagle which is full of pity towards his young and does not enter its nest suddenly – before it beats and flaps with its wings above its young, passing between tree and tree, between branch and branch, in order that its young may awake and have enough strength to receive it.”  And: “Even the jackals offer the breast and nurse their young, but my people has become cruel, like the ostriches in the wilderness.” Lamentations 4:3 [e]. And Rashi, in his commentary on Lamentations 4:3, “Even the jackals” [f] writes that “Even though he is cruel, a demon who sees his son from afar, hungry, will take a blindfold from his breast to cover his eyes so as to avoid seeing his son, and he will retreat back the way he came.”

 

 

6. The matter is even worse: the children were orphaned of their mother’s physical and emotional care. A child who grows up without a mother’s love and comfort is harmed in any event. That situation creates special obligations:

 

A man ought to be especially heedful of his behaviour towards widows and orphans, for their souls are exceedingly depressed and their spirits low. Even if they are wealthy, even if they are the widow and orphans of a king, we are specifically enjoined concerning them, as it is said “Ye shall not afflict any widow or fatherless child” (Ex. 22:21). How are we to conduct ourselves towards them? One must not speak to them otherwise than tenderly. One must show them unvarying courtesy; not hurt them physically with hard toil, nor wound their feelings with harsh speech. One must take greater care of their property than of one's own. Whoever irritates them, provokes them to anger, pain them, tyrannizes over them, or causes them loss of money, is guilty of a transgression, and still more so, if one beats them or curses them. Though no stripes are inflicted for this transgression, its punishment is explicitly set forth in the Torah (in the following terms) “My wrath shall wax hot, and I will slay you with the sword” (Ex. 22:23). He who created the world by His word made a covenant with widows and orphans that when they will cry out because of violence, they will be answered; as it is said, “If thou afflict them in any wise – for it they cry at all unto Me, I will surely hear their cry” (Ex. 22:22). This only applies to cases where a person afflicts them for his own ends. But if a teacher punishes orphan children in order to teach them Torah or a trade, or lead them in the right way – this is permissible. And yet he should not treat them like others but make a distinction in their favour. He should guide them gently, with the utmost tenderness and courtesy, whether they are bereft of a father or mother, as it is said “For the Lord will plead their cause” (Prov. 22:23). To what age are they to be regarded in these respects as orphans? Till they reach the age when they no longer need an adult on whom they depend to train and care for them, and when each of them can provide for all his wants, like other grown-up persons. Maimonides, Mishnah Torah, Hilechot Deot, 6:10 [g] (emphasis added – Y.E.).

 

 

7. In effect, counsel for the father acknowledges that his behavior was inappropriate, but he consistently repeats that it is a breach of a moral duty for which there is no legal sanction. In other words, the moral defect in severing the relationship between the father and his children does not give rise to a cause of action in tort. It is argued that while there is a legal duty to provide children with their material needs, there is no legal duty, nor can there be such duty, regarding the psychological need for an emotional, fatherly connection as an expression of love, compassion, and kindness. Indeed, how is it possible to force a person to impart love?  Furthermore, the argument goes, even if we were to recognize the legal character of a duty like this, it would be unwise to allow children to sue their fathers based on it. Who could stop the flood of suits over withheld love and emotional harm which occur within families? For policy reasons stemming from the purpose of law and its effectiveness, we should not create a cause of action in tort allowing children to sue their parents for damages for emotional and psychological harm.

 

8. As for the distinction between morality and law, it is clear that we should not turn every worthy human characteristic into a legal duty, which we would recognize by threatening physically to compel compliance with them. The Jewish tradition recognizes a distinction between duties enforced upon a person by earthly courts and moral duties left to the heavens or to the conscience of a person who seeks self-improvement. The Jewish tradition and the modern liberal state, however, draw the boundaries between the two normative systems – law and morality – in very different places. According to Kant’s pure theory, the very enforcement of a duty deprives compliance of its moral character, because an action is moral only when carried out through internal-autonomous recognition of the duty. As noted, the father’s claim is that we cannot impose a duty for him to establish a “fatherly connection” with his children beyond taking care of their material needs.

 

            The question, however, is not what the father thinks about the proper scope of legal duties in parental-child relationships; the question is what arises from the statutory provisions in this area.

 

9. The district court held that the father’s alienating behavior constituted a breach of his statutory duties toward his children as well as the duty of care imposed on him by Section 35 of the Torts Ordinance (New Version), 1968. The district court held that Sections 15 and 17 of the Legal Capacity and Guardianship Law, 1962 and Sections 323, 362, and 365 of the Penal Law, 1977, impose statutory duties on the father. According to the district court, breaching those duties constitutes breach of a statutory duty under Section 63 of the Torts Ordinance, a wrong which entitles the victims to damages.

 

10. I agree with the lower court that the duties imposed on parents by Section 15 of the Legal Capacity and Guardianship Law are not limited to purely physical needs; the section explicitly states that “the parents’ guardianship includes the duty and the right to care for the needs of the minor, including educational needs, his or her studies, and his or her professional and vocational training.” The concept of education is broader than the ocean and deeper than its depths. According to the broadest conception (J.S. Mill), education is the entirety of personal, social, and even physical influences which operate – intentionally or unintentionally – on a person’s experience, character, and talents. Another approach distinguishes between education and training, assigning to education the task of shaping the entire personality of the pupil as a person by introducing him or her to values which constitute a purpose unto themselves. See “Education,” 17 Hebrew Encyclopedia at 612, 618. Indeed, Section 15 of the Legal Capacity and Guardianship Law itself does not limit education to studies and professional training. Assuming, however, arguendo, that the statute limited education to studies and professional training, the father would still have failed to fulfill this limited duty; he did not take the trouble to concern himself with his children’s educational and training difficulties while they were living in various institutions, despite the warnings of education officials. The absolute severance of any relationship with his children is a severe breach of the duty to take care of their needs in general, and their education in particular. However, there are clear limits to the extent to which law can invade the fabric of family life: there is no doubt that a child needs the love of his or her parents and that such love is a critical necessity. As is well known, withholding love is likely to adversely affect a person’s personality. Yet imparting love is beyond the capacity of the law, whose reach is both heavy-handed and short in the field of emotions. Therefore, in imposing a duty on parents to provide for the needs of minors, including education, the legislature did not intend to impose a legal duty to love, i.e. a requirement that a person develop an internal feeling. Indeed, He is who is wiser than any person said that, “Many waters cannot quench love, neither can floods drown it. If one offered for love all the wealth of his house, it would be utterly scorned.” Song of Solomon 8:7 [14]. This is true even of the commandment to love one’s neighbor as oneself (Leviticus 19:18), which is, in Rabbi Akiva’s opinion, a greatly important rule in the Bible. The legal-religious aspects of the commandment – as opposed to its emotional duty – are expressed through external actions such as the rules related to the principle of ensuring a humane death even for someone sentenced to death. See Sota, 8:2 [j]; Baba Kama, 51:1 [k]; Sanhedrin 45:1 [l]; Sanhedrin 52:1,2 [l]. Similarly, the learned Naftali Hertz Wiesel said in his Exegesis of the Book of Deuteronomy (19:18) [m], “Neither love nor hate can be dictated, as no person can rule over them.”

 

11. It should be noted that the Legal Capacity Law does not require parents to succeed in seeing to the education of the child; they are only required, in the words of Section 17, to act for the benefit of the minor as devoted parents would act under the circumstances.

 

In other words, their duty is not to achieve the desired results of the education, studies, and training; they are obligated to make an attempt, according to the level of behavior that ordinarily devoted parents would display.

 

Furthermore, the legislature even went to the trouble of creating a certain immunity for parents from claims of damages caused to children as the result of their behavior (Section 22 of the Legal Capacity Law): “The parents will not be held liable for damages caused to the minor through the fulfilling of their duties of guardianship, unless they acted in the absence of good faith or did not intend the good of the minor.” Without going into the question of whether good faith, in this context, is examined through objective or subjective criteria, there is no doubt that the father in this case behaved as he did not in order to promote the good of his children but rather out of undeniably personal interest, whatever that interest may be. The father therefore has no defense under Section 22 of the above-mentioned law. We should also note that the meaning of Section 22 of the Legal Capacity Law is not limited to granting a certain immunity to parents from liability for damages caused to the minor through the fulfillment of their guardianship duties. The provision also contains a kind of imposition of direct liability on parents for the damages caused to the minor. Section 15, which defines the role of parents, outlines their duties without determining their liability for damages that minors are likely to suffer as a result of the breach of those duties.

 

In my opinion, the legislature intended that Section 22 impose on parents – as evidenced by the footnote to the section – liability for damages caused to the minor by breaching their duties as natural guardians. It is indeed true that the parental duties outlined in Section 15 also fit into the general receptacle of Section 63 to the Torts Ordinance. This inclusion does not, however, significantly derogate from the independent meaning of Section 22 of the Legal Capacity Law as imposing direct liability on parents.

 

12. In contrast, I have certain doubts about the court’s conclusion regarding the breach of duties imposed by the Penal Law. Indeed, there is no theoretical reason that the crimes listed in the Penal Law could not create statutory duties under Section 63 of the Torts Ordinance. See Justice S. Netanyahu’s opinion in CA 245/81 Sultan v. Sultan [1]. However, considering the way the criminal provisions are formulated, I am not convinced that they apply beyond providing for the material necessities they detail.

 

It may very well be that the phrase, “other critical life necessities” within Section 362 of the Penal Law can be interpreted according to the rule of eiusdem generic, meaning according to the substance of the previously-listed issues: clothing, food, shelter. We might interpret it as such in spite of the provisions of Section 7 of the Interpretation Law, 1981 (2 A. Barak, Parshabut Bimishpat [Interpretation in Law] [5] at 129). Because, however, I have found that the father breached his statutory duty under the provisions of the Legal Capacity Law, I do not see a need to decide the question of whether he also breached statutory duties under the Penal Law.

 

13. I agree with the lower court’s conclusion that the behavior of the father constitutes a certain breach of his duty of care toward his children, in the meaning of Section 35 of the Torts Ordinance, and because such breach caused damage to his children, the elements of a negligence tort have been established.

 

The father’s omissions rise to the level of unreasonable behavior, to say the least. The fact that the father intentionally ceased caring for his children does not take away from the possibility that the elements of negligence have been established. Negligence, in the technical sense, can also include intentional acts and omissions, because the test for negligence is the unreasonableness of the behavior and the foreseeability of the harm. Indeed, determining that the element of foreseeability has been established is a kind of value judgment, because we are talking not about the empirical possibility of foreseeability but rather about “normative” foreseeability: “which a reasonable person under similar circumstances would have foreseen in advance.” As noted, counsel for the father asks us to negate the father’s liability through a value judgment, based on the above-mentioned general considerations of legal policy. I am not convinced that, in the special circumstances of this case, these considerations require us to conclude that the father should not be held liable for the foreseeable emotional harm that his behavior was likely to cause his children. In summary: What could have been foreseen, should have been foreseen.

 

14. The negligence in this problem is, substantially, the twin sister of the breach of statutory duties outlined in the Legal Capacity Law. Therefore, if the father’s behavior falls under the auspices of the immunity provision in Section 22 of the Legal Capacity Law, I would also tend to limit, in accordance with that section, the duty of care within the tort of negligence. In other words, I would not recommend expanding the scope of the negligence tort beyond the limits of the specific parental liability established by the Legal Capacity Law.

 

15. Section 15 of the Legal Capacity Law refers to the authority of parents as natural guardians of their minor children as “the duty and right to care for the needs of the minor.” There is no doubt that people may waive their rights, but they may not shirk their duties. Therefore, so long as a parent is the natural guardian of his or her children, he or she bears the duty established by statute to care for the needs of the child, needs which should be given a broad meaning, beyond purely material needs. The fact that the parent does not have custody over the children affects his or her rights, but not his or her duties. Those duties remain on his or her shoulders, subject, of course, to the concrete circumstances of the parent-child relationship. On this issue, compare CA 549/75 Anonymous v. Attorney General [2] at 465-66.

 

16. Counsel for the father raised the argument of the “slippery slope,” meaning that the recognition in principle of parents’ legal liability for emotional damages to their children will open the floodgates for damage claims, like the hairline crack in the dyke that threatens to flood an entire village. Judge H. Stein gave a resounding answer to that claim:

 

The “slippery slope” argument cannot withstand rejecting the doctrine of immunity. Courts have many “stop-gaps” in using different techniques for imposing liability, and they can sort cases according to their severity. Claims for de minimis harms will be dismissed immediately. P. 67 of the judgment.

 

17. The level of severity is not the only test for determining liability in tort. It should be noted, by the way, that rejecting liability for an act of limited significance is not unique to parent-child relationships; the legislature established a general principle that a tort does not include an act of which a person of ordinary intelligence and temperament would not complain under the given circumstances. Sec. 4 of the Torts Ordinance. An important additional test is the balance of interests between parents and children. With all the emphasis on the rights that children have with respect to their parents, an emphasis which is characteristic of current times, the personal autonomy of each parent to shape his or her private life is also important. The duty is to act as a devoted parent, not a tormented parent. The district court therefore correctly held that:

 

There are certain aspects of family life to which judicial adjudication is foreign, as it should be. It is inconceivable that a minor can sue his or her parents in tort for emotional harm caused by the parents’ divorce and break-up of the family unit, despite the damage which, at some level, is widely foreseeable and known. P. 71 of the judgment.

 

18. It should be noted that parent-child relationships are not one-sided, and in addition to the rights which children have with respect to their parents, they also have duties. This additional aspect occupies an important position in the Jewish tradition, and it is expressed in the commandment to honor one’s parents. This commandment still echoes in Section 16 of the Legal Capacity Law: “The minor is obligated, through honoring his or her father and mother, to obey his or her parents in every issue subject to their guardianship” (emphasis added – Y.E.). On the history of the enactment of Section 16, see G. Tedeschi, Mashber Hamishpacha Vichasidei Hamesoret [Family Crisis] [6], 283-84. The religious commandment to honor one’s parents applies throughout a person's life, even after the parents have died. And the learned author of the Shulchan Aruch summarizes these principles according to the religious sources, which are relevant to our subject:

 

1. One must be extremely careful to fear and revere one’s father and mother.

 

…

 

3. To what degree shall parents be feared? If a son attired in costly garments, were to preside over a meeting, and his father or his mother came and rent his garments, and struck him on the head, and spat in his face he should not insult them [-- ed.] but he should remain silent and fear the King, who is the King of kings, the Holy One, blessed be He, who thus decreed.

 

…

 

8. To what degree shall parents be revered? Even if they took from his pocket gold coins and cast it into the sea in front of him, he should not insult them or show distress in their presence or display anger toward them but accept the decree as written and remain silent.

 

…

 

18. Even if his father is wicked and a sinner, he must fear and revere him. Shulchan Aruch, Yoreh Deah, 240 [n].

 

 

Despite these stringent rules, religious law includes a moderating trend which aspires to balance the rights of the son with the duties the commandment imposes toward the father. For example, Rabbi Moshe Isserlish, learned author of the Mapa, adds to the above-mentioned Section 8:

 

Some say that if the parent wants to throw coins belonging to the son into the sea, the son may prevent him and he need not honor him just because he is the son and it is his father. And there is no difference between honoring him and not showing him distress. If he has not yet thrown them, it is permissible to prevent him from doing so, but if he has already thrown them, it is forbidden to insult him but the son may sue him for the damages.

 

And Rabbi Isserlish comments on section 18, mentioned above: “Some say he need not honor a father who is wicked unless he has repented,” and Siftei Cohen comments on this: “Even though he is not obligated to honor him, he may not insult him.” See comments on Rabbi Isserlish. Similarly, on the court imposing the commandment, see the qualifying opinion in Rabbi Isserlish’s comments on verse 1, and the expansive opinion in Torei Zahav. It would seem, then, that Jewish law, too, sets a balance between the different purposes and conflicting interests in this complicated issue, and it in particular permits a son to sue his father in law if the father damages his property.

 

19. The conclusion arising from what I have said thus far is that we should evaluate the tort liability of a father toward his children for breaching the duty to care for their needs in light of the special circumstances of each case. A general statement like this does not seem to break new ground, because it is true of all cases of damage arising from negligence torts and breach of statutory duties.

However, the statement in this context relates to special considerations of balance, which differ substantively from other cases of harm. We are dealing with an intrusion into familial relationships, in which the rights of minors under the natural guardianship of their parents are likely to clash with the rights of the parents to shape their lifestyles autonomously. The modern legal system prefers the interests of minors, but it does not completely negate the freedom of the parents. While a parent cannot completely absolve himself or herself of the duties toward his or her children, the content of those concrete duties is likely to vary, depending on the special circumstances of the internal relationships within the family. We should recall that the legislature granted parents partial immunity in Section 22 of the Legal Capacity Law.

20. Given these considerations, I will now evaluate the special circumstances which will determine the question of a father’s liability for harm caused to his children. As the court held:

The [appellant] knew that he was the father of the children and that they were not given up for adoption. He knew of their yearning for a relationship with him, and he cold-heartedly ignored them. He did not respond to a single one of the requests by the welfare authorities to extend a supporting hand to his children.” P. 47 of the judgment.

The lower court expressed reservations about the very existence of the agreement between the father and his second wife, in which they agreed to exclude the children from his first marriage from their lives. The court added that it does not see a reason that the father could not have cultivated a relationship with his children, had he so desired, without violating the terms of the agreement. The court held:

Even if the father submitted to his wife’s dictates not to bring the children from his first marriage into the house, not even for visits (something that, in my opinion, has no justification and cannot be condoned), that submission would not explain why the father did not visit the children in their place of residence in the institutions and in foster families. P. 48 of the judgment.

I agree with this finding by the lower court. It shows that even if we were to give the maximum consideration to the father’s situation and his aspirations for an alternative family unit, there was still no need for him to display the level of cruelty which he displayed toward his children.

21. U.S. law contains formal and substantive obstacles to suits by children against their parents, including: the traditional common law principle of parental immunity from suits by their children and the reluctance to recognize a tort cause of action for the breach of a statutory duty which is of a penal character. See Justice Hollman’s majority opinion in Burnette v. Wahl. And here, despite these obstacles – which do not exist in our legal system – U.S. courts have recognized the right of children to sue their parents in tort for intentional outrageous conduct. Courtney v. Courtney (1991) [4].  Unfortunately, we can assume that the shocking and disgraceful conduct of the father in the case before us would meet the stringent tests in the above-mentioned category of claims.

22. Under these circumstances, the lower court was correct in concluding that the elements necessary to impose tort liability on the father in our legal system have been established. The remaining question is the level of compensation. The appellant complains that it is too high, both because of his financial situation and also because the goal of tort law is to restore the victim to his or her prior situation, not to deter tortfeasors. Without getting into the substance of these arguments – which on their face do not appear convincing – because the compensation was determined by an agreement under Section 79A of the Courts Law [Consolidated Version], 1984 a court of appeals is not inclined to intervene in the amount determined.

The appeal is therefore denied. The appellant will pay the respondents costs and attorney’s fees in the amount of 10,000 NIS.

 
Justice T. Or

 

I agree with the opinion of my colleague, Justice Englard. I wish to emphasize a single point. Counsel for the [appellant-ed.] expressed his concern that recognizing the right of the respondents to compensation from their father for the emotional harm caused to them would lead the court down a slippery slope. In Burnette v. Wahl [3], mentioned by Justice Englard, the majority opinion by Justice Holman gave a resounding response to this concern:

 

There are probably as many children who have been damaged in some manner by their parents’ failure to meet completely their physical, emotional and psychological needs as there are people. Id. at 1111.

 

Indeed, there is no doubt that the relationship between parents and children is often complex and emotionally-laden. It is not immune from frustrations, disappointments, and disillusionment, whether mutual or one-sided, which are likely to give rise to the feeling that one side has not fulfilled his or her duties with the appropriate amount of dedication. The court, therefore, should be doubly cautious in addressing these issues, and must take care not to intrude unnecessarily upon this delicate fabric of relations. It must not clear the way for a wave of tort claims of children against parents, claims which are based in complex life circumstances which are difficult to judge in retrospect. Parents are not immune from errors in judgment during the course of such a long and complicated relationship. The court must exercise appropriate caution in drawing the line delineating when it will intervene by recognizing a cause of action in tort by a child against his or her parent. Appropriate judicial policy dictates that only in extreme cases will parents’ acts or omissions rise to the level of the negligence sufficient to sustain a tort claim against them.

 

The case at bar does not require us to delineate where the line falls. The circumstances of this case are so extreme in their severity, the question of where to draw the line does not arise at all.

 

This is not the ordinary case requiring us to evaluate how a parent exercised his or her judgment. The appellant shirked all his parental duties completely and harshly. He simply abandoned his children and ignored their existence. His behavior is particularly harsh in light of the fact that the children had already been orphaned of their mother. Even worse: this case shocks the conscience in particular because of the fact that his children watched him establish a new family, which he nurtured and of which he took care. His children watched him do this from afar, while they yearned for him. The circumstances of this case are unique, and our recognition of the rights of the respondents to damages under the circumstances should not be seen as opening the floodgate to suits by children against their parents for every case of inappropriate behavior by parents toward their children. Indeed, ordinarily, parents are entitled to the defense imparted by Section 22 of the law of Legal Capacity and Guardianship Law, 1962.

 

Even if future cases require courts to address the question in depth and delineate the appropriate scope of parental duties, I agree with my colleague, Justice Englard, that courts are equipped with the legal tools to do so. The court will have to delineate rules which will, on the one hand, allow children, in appropriate cases, to claim compensation from their parents for emotional harm, and on the other hand, recognize that a parent’s judgment enjoys an autonomy which should not be unnecessarily infringed upon. In any event, the question is beyond the scope of the case before us, and so we will leave a discussion of the issue, with all the problems it raises, until such time as it becomes necessary to adjudicate it.

 

 

 

Justice I. Zamir

 

I concur with Justice Y. Englard’s opinion and with Justice T. Or’s comments.

 

Appeal Denied

October 4, 1999

LCA 4740/00

1.  Limor Amar

2.  Naftali Amar

v

1.  Orna Yoseph

2.  Ya’acov Schlesinger

3.  Yediot Tikshoret Ltd.

 

The Supreme Court sitting as the Court of Civil Appeals

[14 August 2001]

Before President A. Barak, Vice President S. Levin and Justice T. Or

 

Appeal by leave on the judgment of the Nazereth District Court (President Y. Abramowitz, Vice President M. Ben David and Justice N. Mamen) dated 1 June 2000 in CC 272/99, in which the Court overruled the judgment of the Magistrates Court in Nazereth (Justice A.  Abraham) from 2 June 1999.

 

Facts: The appellants are a couple who had a baby girl born whom they did not take home from the hospital.  She was born with birth defects.  The respondents were involved in the publication of two articles on the matter of the girl.  In one article details of her birth were given and it was written that she was abandoned by her parents.  It was written in the subtitle of the article that the mother of the baby is a drug addict.  In the other article the birth defects of the daughter and the abandonment were published.  The appellants sued the respondents on the basis of the Defamation Law 5725-1965 for these publications.  The suit was filed for the amount of 100,000 NIS for reasons related to filing fees.  The Magistrates Court (Justice A. Abraham) determined as to what was written in the first article that the mother was a drug addict that this constituted defamation and the respondents did not fulfill the requirements for the defenses of truthfulness or good faith.  The Magistrates Court awarded the appellants 100,000 NIS in compensation and also ordered the respondents to pay 15,000 NIS in court fees.  The respondents appealed to the District Court which reduced the compensation to 40,000 NIS, the District Court also reduced the award of court fees and set it at 6,000 NIS, and determined that the compensation award would only be in favor of the appellant.  The appellants were granted leave to appeal and appealed this decision.

 

Held: The Court determined that the non-economic damage had been proven in this case, including: damage to the appellant’s reputation in that it was written about her that she is a drug addict; and severe injury to her feelings during her difficult times as it was hinted that the daughter was born with a birth defect due to the mother’s drug addiction.  Furthermore, the respondents did not minimize the damage by publishing a correction and increased the damage by continuing to claim the truthfulness of the publication though they knew that there was a mistake in the publication.  In this situation the compensation that was determined in the Magistrates Court (100,000 NIS) was proper.  Also, for the purposes of this appeal, the Court rejected the stance of the defendant that Amendment no. 6 of Prohibition of Defamation Law, in adding section 7A(b) to the law, established a maximum threshold for compensation without proof of damages. The Court overturned the District Court’s decision, reinstated the Magistrates Court award of 100,000 in compensation and ordered the respondents to pay the appellants’ attorneys’ fees in the amount of 30,000 NIS, as well as court fees.

 

Legislation cited:

Prohibition of Defamation Law 5726-1965 – ss. 1, 2, 6, 7, 7a(b), 9(a)(2), 14, 15, 16, 19.

Prohibition of Defamation Law (Amendment no. 6) 5759-1998.

Torts Ordinance [New Version] ss. 2, 71, 76, chapter 5.

Civil Torts Ordinance, 1944, ss. 2(2)-15, 55B, 58-61, 60, 63-68A.

 

Regulations cited:

Civil Procedure Regulations, 5744-1984, r. 513.

 

Israeli Supreme Court cases cited:

[1]      CA 214/89 Avneri v. Shapira IsrSC 43(3) 840.

[2]      HCJ 6126/94 Senesh v. Broadcast Authority IsrSC 53(3) 817.

[3]      FHC 7325/95 Yediot Ahronot Ltd. v. Kraus IsrSC 52(3) 1.

[4]      HCJ 153/83 Levi v. Southern Command Commander of Israel Police IsrSC 38(2) 393.

[5]      CrimA 255/68 State of Israel v. Ben Moshe IsrSC 22(2) 427.

[6]      HCJ 4804/94 Station Film Company Ltd. v. Film and Play Review Board IsrSC 50 (5) 661.

[7]      PPA 4463/94 Golan v. Prison Authority IsrSC 50(4) 136.

[8]      HCJ 2481/93 Dayan v. Jerusalem District Commander IsrSC 48(2) 456.

[9]      FH 9/77 Israel Electric Company Ltd. v. ‘Ha’aretz’ Newspaper Publication Ltd.  IsrSC 35(2) 457.

[10]    CA 348/85 BenZion v. Modiin Publication Ltd.  IsrSC 42(1) 797.

[11]    HCJ 6658/93 Am K’Lavi v. Jerusalem Police Captain IsrSC 48(4) 793.

[12]    CA 670/79 ‘Ha’aretz’ Newspaper Publication Ltd. v. Mizrahi IsrSC 41(2) 169.

[13]    CA 30/72 Freedman v. Segel IsrSC 27(2) 225.

[14]    CA 802/87 Nof v. Avneri IsrSC 45(2) 489.

[15]    CA 1370/91 Mashour v. Habibi IsrSC 47(1) 535.

[16]    FH 15/88 Melekh v. Kornhauser IsrSC 44(2) 89.

[17]    CA 295/94 Modiin Publication Ltd. v. Spiro IsrSC 46(3) 48.

[18]    CA 5610/93 Zeleski v. Local Committee for Construction and Planning, Rishon L’Zion IsrSC 51(1) 68.

[19]    CA 1977/97 Barzani v. Bezeq Israeli Communication Company IsrSC 55(4) 584.

[20]    CA 22/49 Levi v. Mussaf IsrSC 4 558.

[21]    CA 70/52 Grossman v. Rot IsrSC 6 1242.

[22]    CA 467/77 Horowitz v. Port Authority in Israel IsrSC 33(2) 256.

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

[24]    CA 930/90 Municipality of Netanyah v. Zimmerman (unreported).

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

[26]    CA 2055/99 Ploni v. Harav Ze’ev IsrSC 55(5) 241.

[27]    CA 492/89 Slonim v. ‘Davar’ Ltd. IsrSC 46(3) 827.

[28]    CA 552/73 Rosenblum v. Katz IsrSC 30(1) 589.

.

American cases cited:

[29]    Sweeney v. Patterson 128 F. 2d 457 (1942).

[30]    New York Times v. Sullivan 376 U.S. 254 (1964).

[31]    Gertz v. Robert Welch, Inc. 418 U.S. 323 (1974).

 

Australian cases cited:

[32]    Theophanous v. Herald & Weekly Times Ltd. (1993-1994) 182 C.L.R. 104.

[33]    Stephens v. West Australian Newspapers Ltd. (1993-1994) 182 C.L.R. 211.

 

English cases cited:

[34]    Derbyshire County Council v. Times Newspaper [1993] A.C. 534.

[35]    John v. M.G.N. Ltd. [1996] 3 W.L.R. 593 (C.A.).

 

Canadian cases cited:

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

 

Israeli books cited:

[37]    A. Shinhar Slander Laws (1997)

 

Israeli articles cited:

[38]    H. H. Cohn, ‘The Values of a Jewish and Democratic State – Studies in the Basic Law: Human Dignity and liberty’, HaPraklit – Jubilee Volume, 1994.

[39]    A. Barak, ‘The Tradition of Freedom of Expression in Israel and its Problems’ Mishpatim 27 (1996-1997) 223.

[40]    A. Barak, ‘Assessing Damages in Bodily Injury: The Desired Law and the Current Law’ Iyunei Mishpat 9 (1983) 243.

 

Foreign books cited:

[41]    I. Englard The Philosophy of Tort Law (Cambridge, London, 1993).

[42]    J.C.C. Gatley On Libel and Slander (London, 9th ed., by P. Milmo, W.V.H. Rogers, 1998).

[43]    J.G. Fleming The Law of Torts (Sydney, 8th ed., 1992).

 

Foreign articles cited:

[44]    R.C. Post ‘The Social Foundations of Defamation Law: Reputation and the Constitution’ 74 Cal. L. Rev. (1986) 691.          

[45]       J.G. Fleming ‘Libel and Constitutional Free Speech’ Essays for Patrick Atiyah (1991) 333.

[46]    G.C. Cook ‘Reconciling the first Amendment With the Individual’s Reputation: The Declaratory Judgment as an Option for Libel Suits’ 93 Dick. L. Rev. (1989) 265.

 

For the appellant – Ephraim Cohen

For the respondent – Zvi Shtoirman

 

 

 

JUDGMENT

 

President A. Barak

What are the criteria for determining compensation in a suit for defamation – that is the question before us in this appeal.

The Facts

1.  The appellants are a young couple that live in Tiberias.  Their daughter was born (on 6 October 1994) with a rare syndrome.  She suffers, among other things from severe distortions in her limbs and head.  The appellants refused to take their daughter home.  She was left in the hospital.  The medical staff took care of her for many months.  Respondent no. 1 is a reporter for respondent no. 3.  It is a local paper distributed in Tiberias and the northern part of the country.  The newspaper’s editor is respondent no. 2.  Two articles were published on the matter of the girl.  In the first article (from 25 November, 1994) the details of her birth were given and it was noted that she was abandoned by her parents.  In the subtitle of the article it was written that the mother of the baby is a drug addict.  In the second article (from 25 August 1995) the birth defects of the daughter and the abandonment were published.  The appellants sued the respondents on the basis of the Defamation Law 5725-1965 [hereinafter: ‘the law’] for these publications.  For reasons related to the filing fee they filed their suit for the amount of 100,000 NIS.

The Magistrates Court

2. The Magistrates Court (Justice A. Abraham) determined that what was said in the articles constitutes defamation (as stated in section 1 of the law).  It was determined that the publications in the local paper led to the identification of the appellants as the parents of the baby.  They damaged their reputation, humiliated them and degraded them before other persons.  However, it was determined that the details in the two articles as to the physical condition of the girl and her abandonment were true, and there was an interest to the public in their publication.  Therefore, the respondents had a defense from liability (see section 14 of the law).  As to the publication of these details, the suit was dismissed.  The Court examined whether the defendants had a good defense as to the publication in the first article, that the mother was a drug addict.  In this matter it was determined that the mother does not take drugs, and is not a drug addict.  The publication in this matter constitutes defamation of the appellants without them having the defense of ‘I spoke the truth’.  So too it was established that the defendants did not have the defense of ‘good faith’ (as stated in section 15 and 16 of the law).

3.  As for the appellants damages as a result of the publication in the first article as to the mother being a drug addict it was determined, that indeed what was said in the article spread throughout the neighborhood where the appellants lived.  The publication poured salt on their wounds, as in addition to their difficult situation in the fact of the birth defect that befell their daughter, their pain was increased by the description of the mother as a drug addict, from which it one might understand that the mother brought the tragedy on her daughter and on herself for taking drugs.  Proof was also brought that due to this publication the appellant’s employer was forced to fire her, since a customer in the store where the appellant worked identified her as the one who gave birth to a daughter with birth defects because she was a drug addict.  As to the conduct of the respondents it was determined that they did not undertake any reasonable effort to check before the publication whether the mother was a drug addict.  Despite this they did not initiate any correction of the first article.  Quite the opposite, during the course of the trial they did all that they could – including an attempt to reveal the guardianship file of the baby – in order to prove that the mother was in fact a drug addict, even though already in the pre-trial hearing respondent no. 1 admitted that there was a mistake in the article as to this matter.  Finally, the Court noted that in the newspaper ‘Ma’ariv’ (on 27 September 1995) an article was published at the initiative of the appellants in which they told their story.  It was determined that this did not reduce the compensation to which the appellants were entitled.  It was also determined that this publication did not add to or detract from the publication of the respondents as to the appellant being a drug addict.

4.  The Magistrates Court determined that that primary damage to the appellants was the damage to their reputation, their feelings and their spirit.  It added that it was of the opinion that economic damage could also have been caused to the appellants, and in fact may possibly have been caused.  It was determined that ‘the totality of the considerations which surround the matter, and in particular the fact, that the erroneous publication was made when the plaintiffs were in a difficult emotional situation due to their eldest daughter being born with a birth defect, due to which they left the girl in the hospital, can increase the damage to the plaintiff, and from this is derived the amount of damages that the defendants are to be held liable for’ (paragraph 33).  The amount of damages was set at 100,000 NIS.  The respondents were also ordered to pay 15,000 NIS in court fees.  The Court emphasized that the respondents conducted a war of attrition to prove that the appellants was a drug addict, when they knew all along that this publication was erroneous.

The District Court

5.  The defendants appealed to the District Court.  The appeal revolved around both the matter of the liability and the matter of the compensation.  The District Court (President Y. Abramowitz, Vice President M. Ben David and Justice N. Mamen) dismissed the appeal as to liability.  The appeal on the amount of compensation was granted.   It was determined that the Magistrates Court was excessive in the amount of compensation when it awarded the full amount of the suit without giving weight to the fact that additional arguments of the appellants (before us) were dismissed.  The District Court set the amount of compensation at 40,000 NIS.  In determining this sum the District Court took into account that the circle of people who might identify the appellant as a drug addict, soon after publication, was fairly limited.  So too, the District Court reduced the award of court fees and set it at 6,000 NIS.  Finally, it was determined that the compensation award would be in favor of the appellant only and not her partner. 

The Arguments before Us

6.  The appellants applied for and were granted leave to appeal.  They argued before us that it was not appropriate to intervene in the determination of compensation.  According to their claim, the amount of compensation must reflect the importance of a person’s reputation.  The amount of compensation must clarify that a person’s reputation is not ‘cheap’.  Harmful publication which is motivated by the journalistic goal of ‘grabbing a headline’ without prior fact checking is to be deterred.  The appellants turned our attention to the fact that after the judgment of the Magistrates Court the Prohibition of Defamation Law (Amendment no.6) 5759-1998 (hereinafter: ‘Amendment no. 6) was passed, according to which in a trial for a civil tort of defamation the court may require the defendant to pay compensation not to exceed 50,000 NIS without proving damages (section 7A(b)).  According to the appellants’ claim, against the background of this provision – which does not apply in our case – the amount that the Court awarded was not excessive.  Finally, it was emphasized that the Magistrates Court did not award the full amount they asked for, as the amount of compensation in the petition was reduced to 100,000 NIS due to the economic hardship in paying the filing fee.  According to the appellants claim, the re-evaluated amount of the suit at the time of the decision in the Magistrates Court stood at 150,000 NIS.

2.  The respondents sought to leave the decision of the District Court standing.   According to their claim, the Magistrates Court was excessive in the amount of compensation it awarded them.  Amendment no. 6 establishes a ceiling on general damages of 50,000 NIS, and this can indirectly also impact the case before us.  The respondents emphasized that they acted in good faith while seeking to assist in the adoption process of the minor.  They also noted that the Magistrates Court accepted the stance of the respondents on the matter of the publications, apart from the appellant being a drug addict.  This should also be reflected in the amount of compensation awarded.

The Prohibition on Defamation as a Balance between Conflicting Constitutional Rights

8.  The laws as to the prohibition on defamation constitute a delicate balance among human rights central to every democracy: the right to one’s good name and privacy on the one hand and the right to freedom of expression on the other.  A liberty seeking society is not to exist without protection of the reputation of each one of the society’s members (see CA 214/89 Avneri v. Shapira [1] (hereinafter: the Avneri case at p. 856).  I explained this in one of the cases when I stated:

‘One who steals my property may compensate me with money.  One who steals my reputation steals my reason for existing.  A person’s reputation determines the way he relates to himself and the way his friends relate to him.  It determines the attitude of society to him.  The only asset that the multitude has – whether they serve in the governmental authorities or whether they operate in the private sector – is their reputation.  It is as dear to them as life itself’ (HCJ 6126/94 Senesh  v. Broadcast Authority (hereinafter: ‘the Senesh  case’ [2], at p. 832).

Indeed, a democratic regime that protects the liberty of each of its individuals is permitted and must protect not only the body of the individual but also his spirit and reputation.  In Israel the protection of one’s reputation is also derived from the protection of human dignity.  (See FHC 7325/95 Yediot Ahronot Ltd. v. Kraus [3] at p. 74; H. H. Cohn, ‘The Values of a Jewish and Democratic State  –  Studies in the Basic Law: Human Dignity and liberty’, HaPraklit  –  Jubilee Volume [38] at p. 40 as well as Hill v. Church of Scientology [1995] 2 S.C.R. 1130 [36] at p. 1175.  So too it is possible occasionally to anchor the defense of one’s reputation in the right to privacy, as a publication that is defamatory more than once violates a person’s privacy and personal life.

9.  Freedom of expression is a central component in every democratic regime.  It has a ‘... a place of dignity in the hall of basic human rights’ (HCJ 153/83 Levi v. Southern Command Commander of Israel Police [4] at p. 398).  It constitutes the ‘... life breath of democracy’ (Justice Agranat in CrimA 255/68 State of Israel v. Ben Moshe IsrSC 22(2) 427 [5], at p. 435.  See also [39]).  A democratic regime should not exist without freedom of expression being ensured.  In Israel this protection of freedom of expression is also derived from the constitutional protection of human dignity (see HCJ 4804/94 Station Film Company Ltd. v. Film and Play Review Board [6], at p. 675; PPA 4463/94 Golan v. Prison Authority [7] at pp. 156-157; HCJ 2481/93 Dayan v. Jerusalem District Commander [8] at p. 468, and compare to the Senesh case [2] at pp. 864-865).

10.  This being so, one’s reputation and freedom of expression are derived from the same ‘mother’ right itself, from human dignity.  These two twins – one’s reputation and freedom of expression – toss about in the bowels of democracy.  At times they complete each other.  At times they clash with each other.  The freedom of expression of one damages the reputation of the other.  ‘... the liberty of the citizen stands against the right of the citizen, meaning, his liberty to sound out what is in his heart and to hear what others have to express, against his right not to be injured in his dignity and reputation...’  (Stand-in President Justice Landau in FH 9/77 Israel Electric Company Ltd. v. ‘Ha’aretz’ Newspaper Publication Ltd (hereinafter: ‘the Electric Company Case’ [9] at p. 343).  It was rightly noted that anything that is added to the laws prohibiting defamation is detracted from freedom of expression (See Sweeney v. Patterson (1942) [29] at p. 458).  Every legal system seeks to balance between the two clashing liberties.  ‘The balance is to be found between these contradictory social interests by a value-based choice, which gives the proper weight to each of these in the relevant context...’ (Justice Netanyahu in CA 348/85 BenZion v. Modiin Publication Ltd.  [10], at p. 800)  It is necessary to have (horizontal) balance in which each one of the liberties will retreat in order to fulfill the primary aspects of the other liberty.  (Compare: HCJ 2481/93 supra [8]; the Senesh case [2], at p. 834; HCJ 6658/93 Am K’Lavi v. Jerusalem Police Commander [11]).  This balance found its expression in Israel in the Defamation Prohibition law.  This law establishes that exercise of freedom of expression which contains publication of defamation (as defined in sections 1 and 2 of the law) is a criminal prohibition (section 6 of the law) and a civil tort (section 7), as long as the publication is not truthful and does not have any public interest (section 14 of the law) and the publisher does not have the defense of good faith which is established in the law (section 15).  In this way the border is established between protected expression and expression that is not protected; between protection of reputation and the denial of this defense.  This border draws from the constitutional rights as to freedom of expression, reputation and privacy (see CA 670/79 ‘Ha’aretz’ Newspaper Publication Ltd. v. Mizrahi [12] at p. 199).  The legality of this border is determined by the constitutional balance among these values (see the Electric Company case [9], and also (New York Times v. Sullivan (1964) [30]; Gertz v. Robert Welch, Inc. (1974) [31]; Derbyshire County Council v. Times Newspaper (1993) [34]; Theophanous v. Herald & Weekly Times Ltd. (1994) [32]; Stephens v. West Australian Newspapers Ltd. (1994) [33]; Hill, supra [36]).  Indeed, our constitutional balance reflects the approach that both the right to one’s good name and to privacy and the right to freedom of expression are not absolute.  Each of the rights is relative in its character, when each one ‘concedes’ to the next one while creating a delicate balance between the conflicting values.  (See R.C. Post ‘The Social Foundations of Defamation Law: Reputation and the Constitution’ [44]; J.G. Fleming ‘Libel and Constitutional Free Speech’ [45]).  More than once criticism has been directed at this balance but the discussion of it deviates from the framework of our decision.  (See I. Englard The Philosophy of Tort Law [41] at p. 135.)

11.  The constitutional balance between the right to one’s good name and privacy and the right to freedom of expression extends both to establishing liability (both in Torts and in Criminal Law) for defamation and to the determination of the remedies when the liability exists.  Therefore, this constitutional balance also extends over the civil remedies which the legal system establishes for violation of the (civil) prohibition of publication of defamation.  From here stems the approach that the natural remedy for prohibited injury to one’s reputation is the remedy of compensation (J.C.C. Gatley On Libel and Slander [42], at p. 200; hereinafter ‘Gatley’).  In general this remedy is preferable to the prior restraint as it prevents violation of freedom of expression before the question has been settled whether there is liability for defamation (see the Avneri case (1) at p. 864).  In light of the constitutional aspects, it is problematic to award compensation, for example, where defamation was caused with the intent to do harm.  As is known, Israeli case law has recognized this remedy in suitable cases (See: CA 30/72 Freedman v. Segel [13]; CA 670/79 supra [12], at p. 205; CA 802/87 Nof v. Avneri [14], at p. 494; CA 1370/91 Mashour v. Habibi [15]).  In the framework of this appeal we do not need to examine this issue (see J.G. Fleming The Law of Torts [43], at p. 596).  On the other hand the remedy of a declaratory judgment can at times be an appropriate remedy (see G.C. Cook ‘Reconciling the first Amendment with the Individual’s Reputation: The Declaratory Judgment as an Option for Libel Suits’ [46]).  Similarly, the remedy of publication of a correction which undoes the outcomes of defamation is appropriate, as it can provide a remedy (if only partial) to defamation without violating freedom of speech (see section 9A(2) of the law).  In the appeal before us we are dealing with the remedy of compensation.  We will therefore look more closely at this remedy.

Compensation

12.  The law establishes (in section 7) that publication of defamation ‘… will be a civil tort, and subject to the provisions of this law the provisions of sections 2(2) to 15, 55B, 58-61, and 63-68A of the Civil Torts Ordinance, 1944 will apply to it’.  This reference also includes, inter alia, reference to the provisions in the Torts Ordinance [New Version], which deal with compensation (section 60 of the Civil Torts Ordinance, 1944, which today constitutes section 76 of the Torts Ordinance [New Version]; (hereinafter: ‘the ordinance’).  These provisions are found in chapter 5 of the ordinance that deals with ‘remedies to torts’.  It is established in it that compensation constitutes remedies for a tort (section 71 of the ordinance), that:

‘Compensation may be given on its own or in addition to an order or in its place, however if –

(1)  the plaintiff suffered damage, compensation will be given just for that damage which may occur in a natural manner in the normal course of events and which comes directly from the defendant’s tort;

(2)  the plaintiff suffered economic damage, he will not be given compensation for the damage unless he gave details as to it in the petition or attached to it.

In this context the ordinance defines ‘damage’ in this language (section 2):

‘‘Damage’ – loss of life, an asset, comfort, physical welfare or reputation, or their absence, and any loss or absence and the like.’

This definition also applies as to compensation for defamation.  It is possible to learn from it that the compensation for defamation is given not just for the economic damage that defamation causes but also for non-economic damage.

13.  This legislative regulation as to compensation for a tort is meager.  It does not contain the necessary detail for a thorough and comprehensive regulation of the compensation laws.  It does not have rules as to quantification of the damage.  These rules were established by the case law.  Indeed, the great majority of the compensation laws for a tort are the fruit of case law.  However, the legislative direction is important.  It is established in it that the injured is entitled to compensation (compensation in the original text).  What are the criteria for determining compensation?  This question cannot be answered without determining the objective of the compensation.  This objective cannot be determined without determining the objective of tort law, in general and of defamation law, specifically.  Indeed, the interpretation of the provision in the ordinance as to ‘compensation’ must take place in the framework of the purpose which is at the foundation of tort laws and defamation laws.  And yet, there is no consensus as to this purpose.  From an historical perspective tort laws have fulfilled various functions, including a remedy function, a deterrent (or educational) function and a punitive function (see FH 15/88 Melekh v. Kornhauser [16] at p. 95; CA 295/94 Modiin Publication  Ltd. v. Spiro [17], at p. 57; CA 1370/91 supra [15] at p. 538).  Similar purposes were laid at the foundation of compensation for defamation.  Justice D. Levin writes:

‘The compensation which the court is authorized to award to one who was injured by the tort of defamation has a dual end; first, to give satisfaction to the injured, both by him being able to know that it is recognized that a tort has been committed against him in that his reputation was damaged without justification, and by the fact that the amount of the compensation that will be paid to him could somewhat improve his situation and bring him closer to the extent possible – to the extent that money can contribute to this – to the situation that he was in prior to the occurrence of the tort.

Second – as has already been said in the decisions of this Court – the compensation determined for the tort of defamation was also intended to ‘educate the audience and introduce into its consciousness that a person’s reputation, whether he is a private person, or whether he is a public figure, is not a free-for-all, and there is substance in what has been said in the book of Ecclesiastes ‘a name is better than a good oil’... meaning: compensation, which when awarded has a punitive end and an educational deterrent end as one...’ (CA 802/87 supra [14] at pp. 493-494).

In a similar vein Justice Bach noted:

‘... one of the objectives of compensation in defamation cases is to educate the public and introduce into its consciousness that a person’s reputation is not a free-for-all.  In determining compensation there is a punitive end and an educational deterrent end as one’ (CA 259/89 supra [17] at p. 57).

In the framework of the appeal before us there is no need to examine the punitive function, as punitive damages were not claimed in the appeal before us.  In the appeal before us remedial damages were sought, and we will now turn to the criteria for determining these.

14.  It is universally agreed, that one of the main objectives of compensation in tort law is remedial.  Compensation was intended to remove the damage and better it.  It comes to undo the results of the tort.  It is directed at placing the injured in the same position in which he would have been had the tort not occurred.  My colleague Justice Or explained this, in noting:

‘The starting point of the discussion of the compensation to which the appellants are entitled to is embodied in the general objective of compensation in tort law.  This objective is, first and foremost, to repair the damage caused by the tort...  therefore, the broad rule as to compensation in torts is that one is to award the injured that compensation which would place him in the same position in which he would have been had he not been subject to the tort.

...

As such, tort compensation was intended to restore the status quo that would have been were it not for the tort...’ (CA 5610/93 Zeleski v. Local Committee for Construction and Planning, Rishon L’Zion [18] at pp. 80-81).

And in a similar vein I noted in one of the cases:

‘From the essence of the term compensation, it stems, that this remedy was intended to remove the damage and improve it...  the purpose of the compensation is to place the injured, to the extent possible, in the same position in which he was at the time of the occurrence of the tort had the tort not occurred...’  (CA 1977/97 Barzani v. Bezeq Israeli Communication Company [19]       at p. 619).

Indeed, the principle that the objective of compensation is to restore the original situation (restitution in integrum) runs like a common thread through the laws of compensation in torts.  (See: CA 22/49   Levi v. Mussaf [20] at p. 564; CA 70/52   Grossman v. Rot [21] at p. 1253; CA 467/77 Horowitz v. Port Authority in Israel [22] at p. 262; CA 357/80 Naim v. Barda [23] at p. At p. 775; CA 930/90 Municipality of Netanyah v. Zimmerman [24] and many others).  This approach also applies in compensation for defamation (see A. Shinhar Defamation Laws [37] at p. 369).  Indeed the compensation for defamation was intended to place the injured in the same position in which he would be in were it not for publication of the defamation (see CA 802/87 supra [14] at p. 493).  In achieving this objective the proper balance is found between the right to one’s good name and freedom of expression.  The infringement on the right to one’s good name – like the violation of a constitutional right to liberty and bodily wholeness – justifies remedial compensation which returns the situation to its original state.  Such compensation is consistent with the proper protection of freedom of expression.  Indeed, the law of liability in torts establishes (horizontal) balance between the conflicting legal rights.  It expresses the relativity of the various rights and the need to balance between them while preserving their core elements.  So too, generally with the (horizontal) conflict between the autonomy of the personal will of the tortfeasor and the bodily and property wholeness of the injured.  Once liability has been established, the tort laws come to actualize it.  The remedial compensation brings about optimal actualization of the balance established by the laws of liability.  This actualization is optimal, as the purpose of the remedial compensation is return of the situation to its original state.  This ‘return’ places the two parties in the same situation they were in prior to the tort.  Compensation which goes beyond remedial compensation – whether it is nominal compensation or punitive compensation – requires special justification.  The high road of the compensation – which is derived from the proper balance between the conflicting constitutional rights in the realm of liability – is the remedial compensation.  It preserves the constitutional balance in the realm of liability and fulfills it.  Indeed, the nominal compensation operates beyond the remedial compensation.  It places on the one end one’s reputation, and on the other side the public interest in realizing freedom of expression.  This is vertical balancing which operates beyond the bounds of the remedial compensation.  It requires separate justification and separate examination.  So too the law with punitive compensation.  It too operates beyond the remedial compensation.  It places freedom of expression on the one hand and on the other hand the public interest in preserving one’s reputation.  This too is a vertical balancing that operates beyond the bounds of the remedial compensation.  It requires separate justification and separate examination Not so the remedial compensation.  This compensation reflects the horizontal balancing between rights of equal status which compete among themselves, while it returns the two parties to the situation they would have been in prior to commission of the tort.

15.  This purpose of returning the situation to its original status does not raise special difficulties when the damage that is caused to the one injured by the defamation is economic damage, such as loss of wages or expenses.  Assessment of this damage in the framework of the tort of defamation is not different from the assessment of this damage in a tort which causes bodily harm.  The special difficulties arise in all those cases – and they are the majority of cases – in which defamation causes non-economic damage.  These damages touch upon harm to a person’s reputation, his status in society and his self-image.  Justice Cory rightly noted in the Hill case supra [36], that:

‘A defamatory statement can seep into the crevasses of the subconscious and lurk there ever ready to spring forth and spread its cancerous evil. The unfortunate impression left by a libel may last a lifetime’ (at p. 1196).

How can these damages be assessed?  How can the situation be returned to its original state?  This problem is not new to us.  It arises in every case of non-economic damage with bodily damage (see A. Barak, ‘Assessing Damages in Bodily Injury: The Desired Law and the Current Law’ [40]) ‘No money in the world will compensate for tortures of body and soul, on the reduced chances to start a family, or on the loss of the basic enjoyments of normal life’ (Justice Berinson in CA 541/63 Reches v. Hertzberg [25] at p. 126).  ‘How is it possible to assess, exactly or even approximately, in money or in monetary value the pain and the suffering or the sorrow and shame of a person whose arm or leg was cut off, or who walks but the worry eats away at his heart that his days are numbered?...’ (Justice S.Z. Cheshin in CA 70/52 supra, at p. 1254).  Despite this the Court makes an effort and tries as best it can to assess the damage and determine the compensation.  In assessing the damage occasionally attempts are made at standardization which distances the compensation from the real damage.  The Court has come out against these tendencies more than once.  Indeed, the non-economic damage is compensable.  Occasionally this damage is significant, and the injured is entitled to real compensation and not just comfort compensation (see recently CA 2055/99 Ploni v. Harav Ze’ev [26]).  The same is the rule with compensation when the non-economic damage is to one’s reputation.  The court must make an effort while examining each case on its merits, to assess the extent of the damage to reputation and determine that compensation that is capable, to the extent possible, of putting the injured in the situation he would have been in had the defamation not been published.  And note, I am not of the view that the case law that applies in compensation for the non-economic damage in bodily damage can also be automatically applied as to the non-economic damages in damage to one’s reputation.  Bodily injury is not the same as injury to one’s reputation.  However, comparison is possible and it must be done in suitable instances  (see John v. M.G.N. Ltd. (1996) [35]).

16.  The remedial compensation for defamation is intended to achieve three ends: consolution of the injured who suffered injury from the defamation; repair of the damage to his reputation; vindication of his right to his good name which was harmed due to the defamation (see Gatley, ibid [42] at p. 201).  In order to achieve these remedial objectives one is not to be satisfied with symbolic compensation, but also not award compensation which goes above the amount of damage that was caused.  The remedial compensation was not intended to just declare the injury.  It also was not intended to enrich the injured.  The remedial compensation was intended to award full compensation for the damage that was caused – no more and no less (compare CA 357/80 supra [23]).  Only in this way will it be possible – within the bounds of remedial compensation – to fulfill the proper (horizontal) balance between freedom of expression on the one hand and one’s reputation and privacy on the other.  And note, this symbolic compensation can serve as tool for declaration of the commission of the tort, but not as an expression of remedial compensation. Compensation which goes beyond the damage can be justified as punitive compensation, but not as remedial compensation.  It is also not to be said at all that the court must award a ‘high’ compensation in order to protect ones’ reputation.  The court must award full compensation which reflects the full extent of the damage – economic and non-economic–which is caused to the injured.  (See CA 492/89   Slonim v. ‘Davar’ Ltd. [27] at p. 835).

In awarding damages for defamation the court will consider, inter alia, the extent of the injury, the status of the injured in his community, the humiliation he experienced, the pain and suffering that were his lot and expected results of all these in the future.  The examination is individual.  ‘Rates’ are not to be set.  In each case the quality of the publication, its extent, its credibility, the degree of injury and the behavior of the parties are to be considered.  Indeed, the behavior of the injured before the publication and following it may constitute a means with the help of which his injury may be assessed.  Similarly the behavior of the tortfeasor may also impact the degree of compensation and its assessment.  Thus, for example, an apology for the defamatory words may reduce the damage they caused and thereby impact the degree of compensation (see section 19 of the law).  The severity of the injury to the feelings of the injured and his reputation is occasionally measured by the severity of the actions and expressions of the tortfeasor.  And note, this does not constitute punitive compensation.  These are aggravated damages which lead to increased compensation due to the behavior of the tortfeasor.  Thus, for example, a tortfeasor who knows that his words are not true and who makes every effort in court to prove their truthfulness, may cause aggravation of the damage to the injured and thereby increase the compensation he is entitled to.

18.  Does compensation for defamation fulfill a deterrent and educational role?  There is no simple answer to this question.  It returns us to the basic question as to the role of tort law.  Struggling with this question is beyond the scope of this judgment.  It will suffice if I state that even if the laws of compensation for defamation have an educational and deterrent role, this role is not sufficient to cause the remedial compensation to increase beyond its natural dimensions.  Indeed the educational and deterrent aspect make find a place of honor in the bounds of punitive compensation, but where there is not applicability to punitive compensation – as is the case before us – it is not within the power of the educational and deterrent aspect to increase the amount of compensation that would be received according to the rules as to returning the situation to its original state.  Within the remedial compensation the deterrent aspect and the educational aspect find expression in the very imposition of the duty of compensation, in the determination of the degree of compensation according to real criteria of returning the situation to its original state and in increasing the compensation where the behavior of the tortfeasor increases the damage.  Increasing the compensation for deterrent and education reasons beyond that which is necessary to return the situation to its original state will undermine the proper balance between the constitutional rights which are battling for supremacy in the framework of defamation laws.

19.  Frequently it is the media such as newspaper, radio or television which defame.  In this situation there is generally an exacerbation both in the damage to reputation (due to the circulation of the newspaper) and in the violation of freedom of expression (due to the newspaper being a forum and spokesperson as one).  These mutual ‘exacerbations’ balance themselves in the framework of the laws of defamation.  From here the approach that the newspaper as a tortfeasor does not have special status in assessing the compensation for defamation.  Justice Berinson discussed this in one of the cases, in noting:

‘I do not see a contradiction between protection of the individual’s reputation by awarding fair compensation for publication of defamation in the newspaper and ensuring freedom of the press. . .  The law draws reasonable and fair boundaries as to the permitted in this area of publication of defamation...  one who deviates from these areas must suffer the consequences.  And as to this a newspaper has no special status.  I would say the opposite.  Because of the large circulation of the news media and its great power to do damage is needs extra reining in. 

If there is sufficient self limitation – all the better; if not the court must bring this about by awarding appropriate compensation.  In the situation existing in this country, where at times the newspapers get caught up in sensationalism and then do not always check the means and deviate from the realm of the permitted according to the law, award of appropriate compensation is perhaps the most tested and certain way to brake this tendency.’  (CA 552/73 Rosenblum v. Katz [28] at p. 596).

Indeed, when the newspaper defames it must pay full compensation for the damage (economic and non-economic) that it causes.  The greater the circulation, the greater the damage might be, and the greater the compensation.  The behavior of the newspaper may increase the damages and the compensation.  However – apart from the question of exemplary damages – which does not arise in this appeal – it is not appropriate to establish special laws for when the tortfeasor is a newspaper.  The general law will apply in this case as well.  The educational and deterrent value – outside of the bounds of the punitive compensation – finds expression in the very imposition of liability on the newspaper and obligating it to pay full remedial compensation while increasing the compensation when the inappropriate behavior of the newspaper exaggerates the damages.

20.  Amendment no. 6 established (in adding section 7A (b) to the law) that:

‘In a trial for a civil tort according to this law the court is entitled to order the defendant to pay to the injured compensation which will not be greater than 50,000 NIS, without proof of damages.’

Both parties relied on this provision in their arguments.  This provision was passed after the incidents the subject of this appeal, and it does not apply to them.  Examining this provision therefore deviates from the bounds of this appeal.  It raises questions about interpretation and validity which are not simple.  It will suffice for us to say, for the purposes of this appeal, that the stance of the defendant is not to be accepted, according to which this provision establishes a maximum threshold for compensation without proof of damages.  The purpose of this provision is to establish a minimum threshold which relieves the injured from the need to prove his damage.

From the General to the Specific

21.  What is the remedial compensation to which the appellants are entitled?  In the episode before us the non-economic damage has been proven.  Damage to the appellant’s reputation in that it was written about her that she is a drug addict; severe injury to her feelings during her difficult times was proven, as it was hinted that the daughter was born with a birth defect due to the mother’s drug addiction.  The respondents refrained from minimizing the damage by publishing a correction.  They increased the damage by continuing to claim the truth of the publication when they knew, and even declared in the pre-trial hearing, that there was a mistake in the publication.  In this situation the compensation that was determined in  the Magistrates Court (100,000 NIS) is not high at all.  It was not appropriate to reduce it in the District Court.

The result is that we accept the appeal, overturn the decision of the District Court and reinstate the decision of the Magistrates Court.  The respondents will pay the appellants’ attorneys’ fees in the amount of 30,000 NIS, and will pay court fees – to be assessed by the registrar, as established in regulation 513 of the Civil Procedure Regulations 5744-1984.

 

 

Justice T. Or

I agree with the decision of the President.

 

 

Vice President S. Levin

1. I agree that the appeal should be granted, as stated in the decision of my distinguished colleague, the President.

2.  In my opinion the rule set out in CA 214/89 has a flipside to it: the limitation on the power of the Court to grant a remedy in order to prevent in advance the publication of allegedly defamatory material, requires that once it has been proven, in retrospect, that in fact we are dealing with defamation, the publisher will bear all the consequences which stem from the publication, meaning: the full measure of compensation for the violation of the privacy of the injured person, the humiliation he experienced, his pain and his good name.  I am of the view that the standards that have been acceptable until now in Israel for assessing the compensation in defamation suits do not reflect the desired law, and that subject to the detailed circumstances of each case, the level of compensation is to be very significantly increased.  In my opinion, this is even more so where the publication is in the media: Indeed, as a rule, one is not to prevent in advance the publication of a notice in the media outlets which merely might be defamatory, and this – based on general principles of freedom of expression.  Nonetheless, the raising of the appropriate standards for assessment of damages, where it turns out, in retrospect, that we are indeed dealing with defamation, serves to show the publishers the need to conduct a thorough examination before publication in order to avoid, as much as possible, damaging the reputation of the subject of the publication and his privacy.  Indeed, subject to the individual circumstances of every case, the level of compensation should reflect, on the one hand, the great weight that our society attributes to a person’s reputation, and also, on the other hand, the benefit to the publisher from a sensational publication that, after the fact, turns out to be defamatory, so that the violator will not end up benefitting.

3.  In the case before us, the petition was already filed, from the start, for an amount that does not deviate from the range of previous case law as to amount of damages, and I agree with my esteemed colleague, the President, that the amount awarded in the Magistrate’s Court is not at all high.  In light of what was already said above, I would not have intervened in the amount of damages even if in the case before us an amount that was significantly greater than the amount of 100,000 NIS had been awarded.

 

It was decided as per the decision of President Barak

 

25 Av 5761

14 August 2001