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Liability of the state and public authorities in Israel and South Africa.

I. INTRODUCTION

Both the Israeli and the South African legal systems are classified as mixed legal systems, or mixed jurisdictions. In Israel, tort law was originally pure English common law, adopted by legislation and later developed judicially. In South Africa, the law of delict (tort) was originally Roman--Dutch but was later strongly influenced by the English common law. Under both systems, tort law is characterized by open-ended norms allowing extensive judicial development. This paper traces and compares the structural basis, methodology, policy, and trends of the judicial development of state and public-authority liability in the Israeli and South African jurisdictions.

The Israeli Civil Wrongs Ordinance (New Version) (CWO), (1) which is primarily a restatement of English common law rules, sets out a closed list of "civil wrongs." The CWO includes two general torts--breach of statutory duty, and negligence--that serve as a basis for judicial development in accordance with societal needs and trends. In addition, more specific forms of liability are specified as well, forming specific torts reminiscent of the ancient writs of English law. Due to an explicit reference in the CWO, as well as the Anglo-American background of most Israeli judges and the English law orientation of academic syllabi, tort law in its formative years was mainly interpreted according to the principles of English law. (2) As in other common law systems, Israeli tort law serves not only as a source of remedies but also as a source of rights and interests. (3) Israel has no written constitution, but the enactment of a set of basic laws protecting certain fundamental rights in the early 1990s (4) has yielded significant impact on private law in general and tort law in particular. (5)

In South Africa, the law of delict is a product of Roman law that was incorporated into Dutch law and then transplanted to South Africa in the seventeenth century as Roman-Dutch law, which is essentially the common law of South Africa. (6) British rule, commencing in 1795, was interrupted in 1803 by a three-year period of Dutch rule and resumed in 1806. It introduced the heritage of the common law, which was imported through legislation and case law that increasingly followed English law. (7) The growing influence of English law stemmed from the appointment of English-speaking judges, the British legal education of both judges and lawyers, and the subservience to the Privy Council. (8) Hence, sources of liability are primarily the negligence-based Aquilian Action and the actio iniuriarum, which imposes liability for intentional impairment of personality rights.

More recently, the "Bill of Rights" chapter in the South African Constitution of 1996 (9) provided an important impetus to develop tort law. As in Israel, the protection of fundamental rights has affected state and public liability not so much by giving rise to direct constitutional causes of action, but rather indirectly, resulting in an expanded protection of human rights within the common law framework of tort liability.

The tort of negligence in Israeli law and the Aquilian action in South Africa both provide a broad basis for negligence-based liability and considerable flexibility for development of the law. This paper examines the specific factors that impact the development of state- and public-authority liability. We demonstrate that in both systems, this development was strongly influenced by (1) constitutional values, (2) the courts' recognition of the need for expanded protection of fundamental human rights, (3) the multicultural nature of the societies, (4) problems of crime and security, and (5) economic considerations. The analysis highlights the activist role of the courts in both countries in developing tort law. In both countries, the courts demonstrate a strong tendency to expand the liability of the state and public authorities for negligent behavior. However, despite shared characteristics, important differences in outcomes exist reflecting social, cultural, and economic differences between the two societies.

The development of state and public-authority liability in both jurisdictions has also been influenced by certain worldwide trends. In most countries, the range of public services has widened considerably, and the culture has also changed, contributing to a more frequent view of members of the public as "clients" or "customers" whose needs must be met. (10) Disappointed customers of a public service feel justified in complaining if the service provided or procured by the state on their behalf is deficient and readily claim compensation for injury or loss. The liability of the state or a public authority requires that the courts strike a balance between protecting the interests of the citizen and preserving the ability of the administration to function in the public interest. Generally the trend has been toward what Basil Markesinis has called a "consumerist vision of public liability" under which "compensating the damages suffered by citizens because of administrative activities can never be a wrong use of public money." (11)

II. ISRAEL

A. THE MAIN FEATURES OF ISRAELI TORT LAW

The Israeli legal system has been classified as a mixed jurisdiction. (12) It reflects a unique mixture of civil law and common law, legislation and case law, British heritage, continental legal concepts, and fresh interpretations by the Israeli Supreme Court. As a combination of old and new, of global and national, it is indeed a mixed legal system both in methodology and context. (13) This background highlights the unique nature of Israeli tort law. Tort remains the only branch of Israeli private law that, over the years, has retained any of the vestiges of its original English common law origin. However, in contemporary Israel, tort law has taken its own turn. Although the basic principles underlying most of Israeli tort law are still based in English common law--as incorporated into Israeli legislation--the interpretation and implementation is purely Israeli, and the differences in outcomes are thus quite significant.

Israeli tort law is statutory law. The British Mandatory legislator copied the English common law and framed it in a statutory form, the Civil Wrongs Ordinance of 1947, which was later reformulated in a more modern fashion, becoming the CWO. (14) Over the years, the Israeli Legislator, influenced by society's moral values and current economic and social conditions, has introduced changes into the original English set of rules, both through new acts and through the addition of totally new sources of liability. The tort regime in Israel is, therefore, a "law of torts" rather than a regime of "tort law." It is comprised primarily of statutory law that is heavily promoted and advanced by a very active judiciary, and it reflects a trend of ever-growing liability. The codification of Israeli private law, which has now reached its final stages, (15) will amend the current Israeli tort law and will help to integrate the English common law-based tort law with the other branches of private law, most of which are based on civil law traditions and rules. Thus, the codification should introduce uniformity and consistency to Israeli private law. (16)

B. STATE AND STATUTORY AUTHORITIES LIABILITY IN TORT: STATUTORY FRAMEWORK

The former Chief Justice of the Israeli Supreme Court once declared the following: "The finest hour of Israeli law was when the special immunity of the State was abolished." (17) The original Civil Wrongs Ordinance reflected the general principle that "the king can do no wrong." (18) However, the principle was rescinded by special legislation in the Civil Wrongs (Liability of the State) Law of 1952, which stated explicitly that state liability in tort is equivalent to the liability of any other corporate body. (19) The only exceptions relate to liability for damage caused by operations in war (20) and damage caused by a non-negligent act within the scope of lawful authority. (21) The equality rule, set by the Liability of the State Statute, also applies to public authorities, such as municipalities and local councils, as well as corporations serving government functions originally within the power of the state.

In addition to the explicit immunities granted by the State Liability Law, the CWO, following a long academic debate, was amended during the last decade. It now grants immunity, with only a few exceptions, to civil servants, including state organs, for acts performed in the course of government duty and in a public capacity. (22) This immunity, however, does not apply to the state itself. (23) In special cases, when the civil servant gravely deviates from the proper public norms, the state or public authority is entitled to indemnification. (24) The CWO also grants general immunity from liability for an act performed within the scope of lawful authority, unless the act constitutes negligence. (25) It also grants judicial immunity, (26) which has sparked intense debate during the last decade regarding the propriety of holding the state liable for the negligence of its justices. The various opinions on this delicate issue will be discussed later. The Liability of the State Statute also moved to abolish the highly contentious immunity of the state from liability in defamation cases and the restricted vicarious liability in assault and unlawful imprisonment.

C. EXPANDING NEGLIGENCE LIABILITY--FRIENDLY STATUTES AND EAGER JUDICIARY

1. THE STATUTORY TORT OF NEGLIGENCE

a. History and Origin

Negligence, the most popular source of liability in Israeli tort law, was imported into the CWO (27) straight from the British House of Lords. Its wording faithfully reflects Lord Aitkin's opinion in the monumental judgment in Donoghue. (28) Since its reception into the CWO and over the past four decades, negligence as a concept has developed tremendously in Israel. Initially, Israeli judges were careful to follow the House of Lords' example, (29) sometimes even ignoring the significant, explicit changes the Mandatory legislator made in the Israeli "local version" of the British common law, to avoid problems that were left unresolved by the House of Lords in England.

Subsequently, when the bond with English tort law was broken, (30) the courts, in a very unique and inventive Israeli way, quickly adapted to their new independence. They demonstrated fresh interpretative reasoning, which led to increased detachment from English tradition and case law. This independent Israeli transition, which subsequently led to the almost strict liability of the state in negligence, is extremely noteworthy considering that the language, form, style, and other characteristics of the original English common law tort of negligence, as phrased by the British legislature, have never been changed, refined, or "modernized" since they were introduced into the original CWO. (31) Even with the transformation into the new version in Hebrew, the Israeli legislature never touched the core of this major source of liability. Hence, the current situation and image of the Israeli tort of negligence is solely the product of the Israeli courts' interpretation.

b. The Open-Ended Elements of Liability in Negligence

Negligence liability under the CWO, as interpreted by the courts, is based on three elements: (1) conduct that falls below a reasonable standard; (2) a duty of care; and (3) a factual and legal causal connection between the negligent act and the loss. (32) Given the broad nature of these elements, especially with regard to the duty of care, negligence has become the primary source for the development of Israeli tort law, through an increasing recognition of new rights and new types of damage. (33) The mechanisms adopted by Israeli case law for resolving the problem posed by the open-ended nature of the liability tests reflect a delicate balancing analysis aimed at optimally harmonizing the need for progress, on the one hand, and the need to control the undesirable expansion of negligence liability, on the other.

The "duty of care" requirement is the primary "gatekeeper" in negligence actions, in general, and in actions against the state and public authorities, in particular. The gates are opened and closed based on policy considerations. These policy considerations, employed by most common law-based tort regimes, operate in Israel through two case law models, both anchored in well-known English precedents: Anns (34) and Caparo. (35) The gist of the two cases, according to their combined implementation in Israeli negligence law, is quite similar: assuming the defendant could have foreseen the damage, the court, using the Anns model, will ask itself whether, indeed, he should have foreseen this risk and avoided it. This "should have" test (36) thus examines normative foreseeability and is based on physical-technical foreseeability, which examines the preceding "could have" test. Normative foreseeability is, of course, narrower than technical foreseeability and is aimed at limiting liability in negligence by ruling out recognition of the duty of care. (37)

The second formula used by the courts in addressing the duty of care is based on the well-known English Caparo case, (38) which employs a three-stage test: (1) foreseeability; (2) proximity ("neighborhood"); and (3) "fair, just, and reasonable" considerations. (39) In both models, the courts in Israel consider theoretical and practical tort law considerations including the type of relationship, the type of harm, and the identity of the parties, along with much wider considerations that are not necessarily typical of tort law, such as the well-known "floodgate" and "slippery-slope" consequences.

This nutshell survey clearly shows that in regards to liability of the state and public officials, the public identity of the tortfeasor dictates special considerations, and the decision regarding whether a duty of care exists depends on finding an optimal balance between the various considerations implicated.

2. THE ROLE OF THE COURTS IN EXPANDING LIABILITY IN NEGLIGENCE LAW UNDER ISRAELI COMMON LAW

Although tort law was historically the first branch of Israeli private law to be codified, and although tort law is still basically statutory law and liability in tort is always accommodated in one of the (now many) tort statutes, one cannot exaggerate the role of the courts in formatting, promoting, developing, and advancing Israeli tort law. Thus, Israeli tort law is a unique example of the interplay between statutory law, which was British in origin, more modern Israeli legislation, and judicial precedents, which also stemmed from Britain but later became Israeli in content and nature, due to an explicit change of the law. (40) Indeed, the subject matter of this paper, public liability in negligence, aptly exemplifies these unique phenomena. While the British conservative, narrow approach typically represents the dominant feature of decisions in the second half of the twentieth century, the current approach of the leading Israeli Supreme Court decisions may be featured as much more liberal, outreaching, and plaintiff friendly, as we shall shortly illustrate.

As the Israeli legal system has adopted the common law stare decisis principle (41) and "judicial precedents" are specifically recognized as a source of Israeli law immediately following statutory law, (42) courts' decisions, especially those of the Israeli Supreme Court, are the real vehicle by which liability in negligence in Israel is being shaped and (over)grown (.43) Israeli judges use both common and civil law methods to "interpret" and "create" the law. With regard to public liability, this interpretation and creation has seemingly gone too far.

D. CONSTITUTIONAL IMPACT ON TORT LAW

Although Israel lacks a formal constitution, Israeli law has always sought to protect human rights, even prior to the enactment in the early 1990s of the Basic Law: Human Dignity and Liberty, and the other subsequent Basic Laws. Following intense academic discussion, and notwithstanding the diverse opinions regarding the effect of the Basic Laws on private law in general and on tort law in particular, the accepted wisdom is that the Basic Laws do not constitute a new source of tort liability, through constitutional claims or the tort of breach of statutory duty. The Basic Laws simply do not apply directly to private litigants. Their constitutional impact mostly speaks to a higher hierarchical standing given to constitutionally protected interests when balanced with competing interests. Moreover, the Basic Laws provide private law with values and concepts such as "reasonableness," "good faith," and "public interest," which the courts apply not only to contracts and property claims but also to tort claims, especially in negligence. The patient's right to be fully informed regarding his medical situation and treatment, (44) which was recognized through the tort of negligence, the consumer's right to drink milk free of additives unknown to him, (45) and the right of a business corporation to full and fair information regarding its right to obtain a business license were all part of the winds of change created by the Basic Laws. (46)

The impact of the Basic Laws on the liability of the state and public authorities may be traced mainly with regard to the issue of balancing between private interests protected by the Basic Laws and conflicting duties and interests of public authorities. The Israeli Supreme Court had stated more than once that by protecting public interests, the interests of the individuals that comprise the "public" are being protected as well. Thus, the constitutionally affected balancing process when applied on public authorities' liability in negligence should take into account both the constitutionally protected rights of the individuals as such and the (usually opposing) collective private interests. (47) Interestingly enough, these questions have not received proper treatment in Israeli case law, a fact that may be attributed to the overall trend of expansion of liability in negligence, as will be detailed below.

E. DUTY OF CARE--POLICY CONSIDERATIONS

The special considerations applied by the Israeli courts in addressing the duty of care of public defendants (48) are similar to those customarily found in other legal systems (49) and, thus, will be only briefly reviewed here. The first set of considerations focuses on the fear of a floodgate effect that, if it materializes, will affect the ability of both the legal system and the public administration to function and might cause a general increase in monetary liability.

A second set of considerations focuses on the potentially destructive influence of imposing liability on public authorities, particularly in relation to their function as governmental authorities responsible for broad planning and budgetary measures. The principal concern here is to avoid substitution of professional authorities' considerations by an unprofessional criticism of the judiciary. An additional concern is that such judicial overruling may cause distortion of the public authorities' discretion in the future. This group of considerations, in essence, reflects a general concern over the intermixing of powers, with a consequent blurring of the boundaries between the responsibilities of state authorities.

A third group of considerations, derived from the previous one, relates to the manner in which negligence liability may have a negative impact not on the public authority, but on its employees, the public servants themselves. (50) Principally, the concern is that public officials, who in the course of exercising their duties must select between alternative professional choices, will prefer options that might not be optimal purely on the basis of the relative risk of tort liability associated with each alternative should their decision be deemed negligent. In addition, concerns have been raised that the threat of negligence liability may decrease public officials' work motivation and deter competent people from taking up public office. (51) Of course, the importance of these considerations varies according to the liability regime applicable to the legal system within which they operate: in a legal regime in which public officials are directly liable for their negligence, along with their employers, the strength of these considerations is much greater than in a legal regime in which it is only the state employer that is vicariously liable for its employees' negligence.

Additional reasons for denying liability relate to the existence of an alternative remedy, be it administrative or constitutional (such as appeals to the High Court of Justice), that is usually available to the plaintiff. Moreover, some very important ethical considerations (sometimes combined with economic considerations) exist for denying such liability and the value choice it may reflect. (52) When dealing with liability of specific public servants, such as members of the judiciary, further unique considerations apply. (53) Broadly speaking, the more complex and delicate the public "administrations" range of tasks and areas of authority, the greater the need to adapt individual consideration for each public institution and its sub-areas of activity.

In response to this set of considerations favoring a lenient approach, Israeli courts have adopted strong counter-considerations leading to imposition of liability. First and foremost among these is the inability to trace a logical distinction between a plaintiff whose loss was the outcome of an individual tortfeasor's negligence and a plaintiff whose loss was caused by a "public" tortfeasor. This relates, of course, to the equally well-known and commonly applied commitment to uniformity and equality. Both of these considerations are general rather than specific to the unique nature of the public tortfeasors under examination.

Apart from these, particularly noteworthy is a consideration of the size, complexity of activities, and the potential for human error associated with public entities whose operations entail some measure of risk. Based on this consideration, the general public, which benefits from the public service while bearing the costs of its ongoing activities, must bear both the normal costs of this public system and the cost of any injurious errors that it generates. It would certainly be unjust to impose the price of error on the victim.

Ultimately, in assessing negligence liability in the public service, Israeli courts also confront broader policy considerations, such as public versus private obligations, individual as opposed to collective justice, and corrective as opposed to distributive justice. To these special considerations, which focus on the unique nature of public defendants, we must add further complexities stemming from the form and nature of public defendants' typical actions and activities. The public servants' negligence often takes the form of an omission, rather than a commission. The harm caused is indirect, sometimes relational, rather than direct; and in the bulk of cases, the negligent act involves a lack of supervision and oversight over others and the failure to prevent negligence on the part of others rather than the commission of a direct negligent act.

The types of loss often caused by public defendants in negligence present an additional dilemma. Beyond the obvious losses such as physical loss to person and property, a significant number of negligence cases produce what has come to be known as pure economic loss, a type of loss disfavored by many legal systems. Pure (non-parasitic) psychological harm, breach of the right to autonomy, and other forms of insubstantial loss are typical as well. Together, all these distinctive features and considerations make the liability of public authorities in negligence a particularly complex issue.

F. CURRENT CASE LAW: EXPANDED LIABILITY IN STATE AND PUBLIC AUTHORITIES' NEGLIGENCE

As mentioned above, the "duty of care" element in Israeli negligence law is construed in a liberal and flexible manner that, in most cases, leads to expanded liability, subject, of course, to the immunities granted in both the CWO and the Liability of the State Statute. (54) This is the case especially when the defendant has caused physical harm to person and property. In such cases, when the court opts to refrain from imposing liability, it seldom declares that "'no duty of care has been established.'" (55) It is much easier and more elegant to hold either that the specific defendant was not negligent (since the standard of care may be lowered as the court sees fit) or that the causal connection is problematic, rather than to find that there is "no duty of care" in the circumstances of the case. Case law does not reveal any special rules or different norms in this regard when dealing with public defendants charged with harm of a physical nature. The special policy considerations that dictate a different hierarchy of norms and preferences are not usually called into action in such cases. The "equality rule," laid by the Liability of the State Statute, is seen here at its best. (56)

The same holds true in cases where public negligence occurs in situations that do not reflect governmental capacity. In such cases, when the public authorities' actions are the equivalent of private action, courts hold the public authorities liable. In fact, this is the default rule under such circumstances. Thus, Israeli courts impose liability in cases involving medical negligence in a public medical facility, (57) public schools, (58) road accidents, (59) possession of property, (60) and unsafe workplaces. (61) The constant "meager" definition of "war action," which provides statutory immunity from liability in negligence, (62) can also be explained along these lines and almost routinely leads to imposing liability.

On the other end of the spectrum, when a public authority exercises statutory powers where there is no corresponding private activity, Israeli case law is less decisive and is mostly characterized by pendulum-like shifts. In the Gordon (63) case, a cornerstone of negligence law in Israel, the Israeli Supreme Court, without hesitation, imposed liability on the Jerusalem Municipality for damage caused by its negligent recording of the defendant's car registration details, which caused the owner to be detained by the police for unpaid traffic fines and suffer a harm that the court defined as "pure harassment." In so doing, the Supreme Court both created a new tort, "negligent prosecution," (64) within the so-called "closed" CWO list of torts and allowed compensation for what was at the time a very new type of loss. The decision clearly shows a very plaintiff-friendly tendency and an unambiguous preference for corrective justice. The proximity, or neighborhood, relationship between the public defendant and the plaintiff in Gordon was analyzed in the same manner that the Supreme Court analyzes the relationship between customers and the private suppliers of goods or services.

The drastic difference between the radical, expansive holding in the Gordon decision and the rhetoric, perception, hierarchy of policy considerations, and duty of care models in the Levi (65) decision is notable. These two cases represent the two extreme sides of the scale on which the balancing point between the pro and con considerations regarding public authorities' liability in negligence is determined. In Levi, the Supreme Court, under the presidency of Chief Justice Shamgar, was asked to decide whether the Supervisor of Insurance Companies in Israel (public) was liable for economic loss caused to the holder of an insurance policy by the collapse of the insurance company. (66)

The Supreme Court adopted a completely opposite approach from the one adopted by the Gordon court under Chief Justice Barak, preferring a much more restrictive approach that culminated in the well-known "discretionary exclusionary" rule. (67) According to the discretionary rule, a public authority should be exempted from tort liability when the damage is caused by governmental activity characterized by broad discretion. Such actions and circumstances, which usually result "only" in pure economic loss, would necessitate balancing between various complex economic, political, and social considerations. (68) This complexity, coupled with the fact that these situations are so rare and unique that the court usually lacks the guidance of previous reference cases to help make a coherent and logical decision, led to Chief Justice Shamgar's exclusion of negligence in discretionary activities from tort liability. Such cases, Levi determined, are better left outside the realm of tort law. The professional public authority should be the sole decision-maker and should be relieved from the specter of liability.

Today, almost fifteen years after Levi, Israeli courts have set its ruling aside almost entirely and manifested a clear and unquestioned tendency to expand the liability of public defendants. Following the general trend of expanding the duty of care in negligence cases, in cases specifically involving public defendants, liability is imposed and a duty of care is affirmed no matter what form of activity is in question. (69) Negligent action, omission, policing, prosecution, taxation, licensing, inspection, issuance of an official opinion, and even judicial rulings have almost routinely given rise to liability. (70)

Moreover, as neither the CWO nor the State Liability Act include reservations regarding the type, form, and nature of the loss caused by negligent behavior, Israeli courts feel free to impose liability even in cases in which other legal systems question the legal wisdom of allowing liability, due to the type of loss involved. Thus, Israel recognizes duty of care in most cases of pure economic loss, although sometimes, mostly in cases of misrepresentation and misstatements, liability is subject to some restrictive tests (71) similar to those applied in England (72) and the United States. (73) The same is true in cases of a non-parasitic, non-pecuniary loss, especially purely mental and emotional loss. (74) Israeli courts set aside most reservations in other legal systems regarding pure economic loss. The only type of loss that Israeli tort law almost entirely rejects is pure relational economic loss, which is also rejected by most legal systems that refuse to compensate plaintiffs for pure economic loss. This overall Israeli trend is, of course, true in cases of public defendants as well.

In cases of misstatements or misrepresentations, or cases in which the loss was caused by a negligently issued license, (75) liability is subject to some restrictive tests designed to ascertain whether a special relationship existed between plaintiff and defendant, whether the plaintiff relied, and whether the defendant had a special reason to foresee the harm he caused. (76) In other pure economic loss cases--with the exception of cases involving pure relational economic loss as described above--the courts, following the lead of the Supreme Court, tend to impose liability, ignoring the problematic nature of the loss and instead focusing only on the "public identity" of the defendant. (77)

The following discussion of the specific liability trends regarding particular state entities will demonstrate the current tendencies in Israeli case law.

1. JUDICIARY LIABILITY

Due to an ongoing judicial-academic debate focusing on judges' immunity on the one hand and the potential liability of the state on the other, the legal situation regarding the susceptibility of the judiciary and the state to courtroom negligence is far from clear. Originally, the legislature expressly affirmed the personal immunity of judges in the CWO. This immunity is still in force. It was initially interpreted as merely procedural in nature, exposing the state to vicarious liability in addition to potential direct liability.

In the past, the legal situation of judicial liability seemed settled and obvious. Hardly any attempts were made to commence negligence proceedings against justices or the state. Lately, however, the nature and scope of both the state's and its justices' liability has been questioned. A growing number of judgments have challenged the judiciary's full immunity and are now willing to impose personal liability when a judge is found to have acted in "gross negligence." Over the last few years, the willingness of the courts to impose such personal liability on the judiciary has attracted a growing number of claims against judges. This poses a growing danger for the state as well. (78)

Despite the lack of Supreme Court precedent, the increase in judiciary negligence cases, the explicit willingness of the courts to impose personal and vicarious liability in such cases, and the heated academic debate on an issue that, until lately, was regarded as almost taboo indicate a clear shift toward expanding the negligence liability of both judges and the state and ignoring the possible negative effects--economic and social--of such an expansion.

2. POLICE LIABILITY

In most cases of physical damage caused by police negligence, the nature of the damage serves as the main criterion and leaves almost no room for hesitation. However, even in cases of non-physical damage, an unmistakable willingness to impose liability is emerging. This willingness sometimes invites criticism. The imposition of liability when public officials are negligent in failing to properly perform administrative acts that require a particularly low level of skills is understandable and justified. (79) Thus, if the public officials' negligence consists of failing to enforce a stay of exit order, (80) or failing to respond to a burglar alarm in a timely manner, (81) it is sensible for the court to impose liability. However, the Supreme Court's readiness to impose liability on the police when sued by a family whose neighbors verbally and physically harassed them for such an extended period of time that they eventually decided to move to a new apartment in a new neighborhood is less persuasive, even to those who accept that the police did not exercise their discretion reasonably. (82) In contrast with the latter decision the District Court in Jerusalem--although initially demonstrating a similar willingness to impose liability on the police--dismissed such negligence claimed in one of the most famous cases of the last decade. (83) The circumstances involved the murder-suicide of a celebrated young Israeli model and her boyfriend. It was difficult to tell from the evidence found at the scene of the crime who committed the murder. In their original statement, the police placed the murder charge on the model. Only later did it become clear that the boyfriend was the murderer and that his brother toyed with the evidence to mislead the police. Following a long discussion of the circumstances, the court decided that there was no negligence on the part of the police as the interference of the boyfriend's brothers, who toyed with the position of the murder weapon on the scene of the crime, could not have been foreseen by the police. (84)

3. TAXATION

An internal audit by the Land Tax Administration led to a delay in the issuance of a tax authorization. Due to a decrease in the exchange rate of the dollar, the plaintiff suffered a financial loss for which the state was held liable. (85) Under totally different circumstances, liability was imposed on the state following the negligent inspection by the taxation authority that failed to properly supervise the agents who were engaged in collecting taxes from the plaintiff company. Consequently, the monetary debt was not paid and the plaintiff suffered economic loss. (86)

4. PROSECUTION

In outstanding circumstances, the court was inclined to impose liability on the state for the negligence of the public prosecutor who submitted an indictment based on a complaint filed by the Israeli Electricity Company against one of its employees, the plaintiff, five years after the filing of a complaint, although all the evidence had been gathered in a timely manner. The indictment was later withdrawn by the prosecutor himself, who found the evidence against the plaintiff unreliable. The plaintiff sued his employer, the Israeli Electricity Company, for negligence in filing the complaint, and the latter filed a third party motion against the State, claiming that it was the public prosecutor's negligence that caused the plaintiffs harm.

The claim against the initial defendant, the Electricity Company, was rejected and the court decided that the complaint was not negligently filed; thus, the third party motion was rejected. Yet the court emphasized that had the plaintiff succeed in establishing negligence on the part of his employer, the court could have imposed liability on the State. The five-year delay constituted, prima facia, negligent administrative conduct by the prosecutor and the State, for which they have no immunity. (87) The court implemented this obiter and imposed liability on a municipality that filed a case based on a wrong statute, leading to a long and damaging legal proceeding. (88)

5. LICENSING

The state is in charge of statutory licensing and supervision of public businesses and services. Plaintiffs filing negligence claims in such circumstances sometimes face difficulties in establishing causation. However, once causation is established, courts have proven willing to impose liability on the state. This is not just in cases of physical loss, as in the case of the plaintiff who fell off a horse at a ranch licensed by the Jerusalem Municipality, (89) or the case of the municipality failing to supervise a private medical facility that treated the plaintiffs impotence in a peculiar manner, thus causing him serious, irrevocable harm. (90) It also applies in cases of a purely commercial nature, such as when the import-export licensing authority handled a shoe importing company's application negligently and failed to inform the company the real reason for the extended waiting period for the company's import license. Such conduct was held by the Supreme Court to violate proper administrative procedure, and since it entailed a denial of the company's rights of autonomy and hearing, the court imposed liability. (91) The court also imposed liability in an unusual claim by some Israeli farmers who suffered diminished income due to an insufficient labor force for their fields. The state negligently failed to issue licenses, which would have permitted the farmers to employ certain workers. (92)

6. INFRASTRUCTURE AND ROADS

In a much celebrated decision, the Supreme Court imposed liability on the Haifa Municipality for economic loss resulting from flood damage. (93) Along the same line, the Supreme Court held that negligence in road construction work, which led to reduction in the income of a local gas station, could give rise to state liability. Although the plaintiff in that case failed to establish any negligence on the part of the State, and, thus, the Court ultimately relieved the State of liability, the Court's clear and unequivocal rhetoric leaves no room for doubt regarding its broad, positive attitude toward imposing state liability in negligence. Even when this attitude--an obiter dictum in that case--is expressed in a short staccato, it remains clear. (94)

7. PLANNING AND CONSTRUCTION AUTHORITIES

As explained above, Israeli law is more inclined than other common law systems to impose liability in cases of pure economic loss. Indeed, as early as 1954, cases of professional misrepresentation became the first category of pure economic loss cases in which the Court imposed liability. (95) In Weinstein v. Kadima, the Israeli Supreme Court adopted the guiding principles set by Justice Cardozo in the United States in the famous Ultramares case (96) and recognized the potential liability of an expert engineer to a building constructor for a negligent construction plan, although there was no contract between them and the loss was pure economic loss. The Court emphasized that liability in this type of circumstances will be recognized only if the plaintiff can establish that his reliance on the professional statement of the defendant, for which he did not pay, was highly foreseeable, that this reliance was foreseen by the defendant, and that the scope of the loss caused to him was also highly foreseen.

Similar considerations and similar restrictions on open-ended liability in negligence were later adopted by the House of Lords in Hedley Byrne. (97) Based on this positive approach to both seemingly problematic elements, pure economic loss and misstatements in expert opinions, the liability of planning and building authorities for erroneous building ratios, incorrect land evaluations, and unreasonable delays in planning and granting building licenses, among other things, have been recognized in Israel. Even the restrictive Supreme Court decision in the Levi case, establishing the discretionary exclusion rule that could have had at least sortie bearing on the reasoning of the courts in these type of cases, did not affect the stream of decisions in which liability was imposed, subject, of course, to the special guidelines of the monumental Kadima decision. (98)

8. MISCELLANEOUS

In recent years, a considerable number of negligence cases against the state and public authorities, in all fields of government activity, have concluded with the defendants incurring liability. (99) Thus, liability was imposed on the Postal Authority not just for the late delivery of mail, (100) but also for carelessness in investigating a complaint by one employee against another, which led to a baseless indictment. (101) Liability was imposed on the Water Authority for the supply of over-saline water that harmed the plaintiffs flower farm and greatly decreased his future profits. (102) Liability was imposed on the Stock Exchange (a private corporation subject to rules of administrative public law) for heavy commercial losses the plaintiffs company incurred after the Stock Exchange's negligence led to a change in the terms of securities issued by the plaintiff and a delay in their implementation. (103) Liability was even imposed on the Israel Airports Authority and the State for losses that the residents of the Palestinian Authority incurred as a result of the Israel Airports Authority's failure to return agricultural product containers that were relied upon for repackaging. (104)

Liability was also imposed recently on the Adoption Authority under circumstances that present considerable difficulties. In that case, the plaintiff was one of two sisters adopted at birth. When one of the two sisters' relatives died, the adoption authorities only provided the name of one of the sisters as a potential heiress. She eventually received the entire inheritance. The other (empty-handed) sister sued the state for her half of the inheritance and won her claim. The operative result of the judgment was that both sisters, together, obtained 50% of their original inheritance at the expense of the public. (105)

The number of actions claiming negligent infringements of personal human rights is increasing significantly. In most of these actions, the defendants are state organs or other public defendants. The latest cases dealt with posthumous dignity. They involved post-mortem operations (106) and cemetery procedures, (107) as well as a shift in the personal status of an Israeli Defense Forces' soldier from "missing in battle" to "killed in action" and "buried in an unknown place," which denied the soldier's parents an opportunity to voice their objection. (108)

G. SHIFTING THE BURDEN OF PROOF: A NEW MEANS OF EXPANDING PUBLIC DEFENDANTS' LIABILITY

Under Israeli tort law, if at the conclusion of the proceedings the court is inconclusive regarding how or why the loss occurred, a situation that is usually described as "evidential uncertainty," and the plaintiff can show that his inability to establish his cause of action was due to the defendant's faulty behavior, the burden of proof shifts to the defendant to rebut the plaintiffs description of the factual situation. The defendant bears the burden of convincing the court either that he did not act negligently or that his action was not the cause of the plaintiffs loss. This change of the normal rule of evidence shifts to the defendant the risk of being found liable for the plaintiffs loss should he not succeed in meeting this burden, even if the court ultimately does not know what factual state of affairs led to the plaintiff's damage. In such cases, the defendant is considered to have caused the plaintiff both the "original loss" caused by the defendant's negligent act and the "secondary loss" of impeding his evidential prospects. (109)

The evidential loss doctrine has been developed and applied, in particular, in cases of medical malpractice, (110) especially when a defendant medical institution has been negligent in maintaining medical records or in documenting medical incidents, in which case it bears the burden of proving its lack of negligence. It should be noted that in these types of cases the damage caused by the defendant is twofold. The first consists of the (usual) physical loss caused by the defendant's malpractice, and immediately thereafter, the second element of damage consists of the defendant's acts or omissions that undermine the plaintiffs prospects of winning his case. This evidential injury is neither a physical injury, nor a pure economic loss injury.

Unsurprisingly, Israeli courts have wholeheartedly embraced this innovation and included it in their toolkit, applying the evidential loss doctrine to all types of negligence cases including, of course, cases of state and public authority negligence. Naturally, the public defendants in this type of circumstance are usually responsible for all sorts of evidence gathering (investigating accidents, crimes, or various types of terrorist incidents), which, through double negligence, cause both physical loss and evidential loss. Thus, the State was held liable for causing physical injury to a plaintiff who claimed that the defendant, a soldier in the Israel Defense Forces, negligently shot him. The court imposed liability due to negligence because the state was unable to rebut the presumption that it was, indeed, the soldier's bullet that caused the plaintiffs loss. The presumption resulted from the application of the evidential loss rule, which was applied after the state (police) neglected to conduct a proper ballistic test that could have proven the origins of the bullet that hit the plaintiff and, thus, could have been evidentially helpful both to the plaintiff and the defendant (state). (111) As a result of this evidential negligence, the police were held liable for the plaintiffs physical damages, although the court was not positively convinced that it was indeed the soldier's bullet that injured the plaintiff.

Despite calming rhetoric by the Supreme Court when this case came before it for an additional review, (112) it is clear that shifting the burden of proof onto the police in the case significantly expanded the potential liability of the state, just as it also expanded potential liability in other cases of negligent decisions on the part of state actors. For example, a negligently conducted car accident investigation could lead to the reversal of a conviction, encouraging the defendant to claim that he would have been successful in proving his innocence in the first instance if the circumstances of the accident had been adequately investigated. (113) Along this line of reasoning, the Court held the State liable after it was sued for having seized land for which, in order to win compensation, the owners needed to prove that they had held possession of the land in the past and to provide details of such possession. They could not do so due to the negligent conduct of the State, the lack of clarity of aerial photographs of the area, and the fact that the region was planted with land mines in a manner that denied the plaintiffs alternative means of proof. In this case, the Supreme Court expanded the use of the evidentiary loss rule, holding it liable vis-a-vis the land owners despite the fact that, at the end of the day, some very important elements of the plaintiffs' cause of action were not established. (114)

The harsh consequences of the evidential loss rule have lately became even more problematic as the Supreme Court has, in the last few years, applied it to additional sets of circumstances in a manner that leads to unprecedented expansion of liability in negligence in general and public authorities' liability in particular. The following case, decided two years ago by the Israeli Supreme Court, may serve as a good example. The plaintiffs' father, Mr. Katz, drowned while swimming in one of Israel's public beaches. The local municipality had neglected to signpost the beach as "off limits" for swimmers. The district court expressed doubts regarding the causal connection between the municipality's negligence and the grave accident, yet ultimately decided that the plaintiffs established causation. The Supreme Court affirmed the decision. (115) However, Justice Rivlin explained that, had the plaintiffs failed to establish the requisite causal connection, the Court could have applied the evidential loss rule and shifted the burden of proof onto the municipality, which by failing to signpost the beach also caused the plaintiffs a grave evidential loss, reflected in their inability to prove their cause of action. According to this line of reasoning, the negligence of the municipality not only caused the physical loss, but also damaged the plaintiffs' chances of proving their case.

The circumstances of the Katz case are clearly different from the circumstances of the cases that led to the adoption of the evidential loss rule. In Katz, both types of loss are inherent in the initial, and only, act of negligence. The same action caused both of the losses: the physical loss and the evidential loss. It is a much broader category of cases than the type of cases that gave rise to the original evidential loss rule. The direct outcome--expansion of liability--is very broad, and the theoretical and practical consequences give rise to many legal questions. Overdeterrence, problematic causal connections, and disregard for corrective justice considerations are but a few of the problems that this type of "built-in evidential loss" might cause. (116)

Although the evidential loss rule is generally applied in Israeli negligence law across the board and is not specifically aimed at public authorities, the impact of the rule on public authorities' liability in negligence is crucial, especially since the ruling in the Katz case did not even mention the fact that the compensation to be paid to Katz's family came out of the public purse. The Katz court did not raise policy considerations relating to the defendant's identity and did not express any doubts regarding widening liability in negligence of public defendants. It remains to be seen how extensively the evidential loss rule is going to affect public authorities' liability in negligence at large and cause policy change in issues regarding accident insurance and budgetary allocations.

H. CONCLUSIONS: ISRAEL

One can well appreciate the long road that Israeli case law has traveled from the early decisions in which the main task the Supreme Court undertook was to trace the intent of English common law to the evolution of independent thought, an independent portrayal of Israeli norms and values and a mature choice of policy considerations. Although expansion of public authorities' liability in negligence has been the norm in Israel for quite a while, it is neither too late nor too soon to look back and try to reassess the forgotten considerations that most legal systems use, even today, to keep public defendants' liability under control.

It is obvious that the expanded liability of public authorities in Israel simply mirrors the overall trend in Israeli negligence law. By comparison to English law, it appears that the Israeli courts believe that many of the considerations advocating limited liability of public defendants may be offset by considerations in favor of expanding such liability, so that the scale clearly tilts in the direction of finding the state and its authorities negligent for (almost) every type of loss in (almost) every type of circumstance and for (almost) all types of acts and omissions. The approval voiced by Chief Justice Barak when blessing the 1952 burial of "the king can do no wrong" principle and welcoming the "equality rule" could hardly have been expected to lead to the extremity of the current trend in Israeli case law, which to date reflects an almost strict liability of state and public authorities in negligence. Even so, the Israeli Supreme Court, consisting of fourteen judges, accommodates heterogeneous voices. Hopefully, new opinions (117) and a fresh hierarchy of values will, at least, lead to a reconsideration of the issue at the Israeli Supreme Court level and motivate the Supreme Court to attend to the threat of the slippery slope whose initial warning signs can already be identified in contemporary Israeli rulings.
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Title Annotation:Third International Congress of the World Society of Mixed Jurisdiction Jurists Symposium on Methodology and Innovation in Mixed Legal Systems; from Introduction through H. Conclusions: Israel, p. 727-755
Author:Loubser, Max; Gidron, Tamar
Publication:Loyola Law Review
Date:Dec 22, 2011
Words:8412
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