Case Number

FH 4693/05

Date Decided

8-29-2010

Decision Type

Appellate

Document Type

Summary

Abstract

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

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

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

Keywords

Justiciability, Torts -- Negligence

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