Case Number
CA 754/05 , CA 759/05
Date Decided
6-5-2007
Decision Type
Appellate
Document Type
Full Opinion
Abstract
Facts: The first appellant in CA 754/05 (‘the mother’) went to give birth at Shaare Zedek Medical Centre (‘the hospital’). The foetus was monitored and the results were satisfactory. Because the birth was progressing slowly, the midwife asked the mother to go for a walk. When she returned three and a half hours later, it was discovered that the foetus had died in the mother’s womb. The appellants sued the hospital. The trial court found the hospital liable in negligence. It denied the claim for the loss of the foetus’s future earnings on the ground that the foetus never acquired the legal capacity to sue since it was not born alive. Therefore, the parents could not sue on its behalf. On the main issue of compensation for the emotional suffering experienced by the appellants as a result of the hospital’s negligence, the trial court found that the mother was entitled to compensation as a main victim of the hospital’s negligence, but the father was not entitled to compensation under the rule laid down in Alsuha v. Estate of Dahan [1], since he was a secondary victim of the hospital’s negligence, and his emotional suffering did not amount to a mental illness or disturbance.
The hospital (in CA 759/05) appealed the finding of liability and the compensation awarded to the mother. The parents (in CA 754/05) appealed the denial of compensation for the foetus’s lost years of earnings, the denial of compensation for the father’s emotional suffering, and the amount of damages awarded.
Held: By not making it clear to the mother that she was required to return for another examination within two hours, in accordance with the guidelines of the Ministry of Health, the hospital was liable for the death of the foetus, since it could not prove that the foetus died within the first two hours after sending the mother away for a walk.
When a foetus dies in its mother’s womb, no one has a cause of action to sue for the loss of the foetus’s future earnings.
(Majority opinion — Vice-President Rivlin, Justice Joubran) In terms of emotional suffering, the mother's case was on the borderline between main victims and secondary victims. The father was a secondary victim. But under the rule laid down in Alsuha v. Estate of Dahan [1], a degree of flexibility was recognized in ‘clear and difficult cases,’ which allowed the court to award compensation for emotional suffering even in the absence of mental illness or disturbance. The father was therefore entitled to compensation for his emotional suffering in addition to the compensation awarded to the mother.
(Minority opinion — Justice Hayut) Both parents were direct victims of the hospital’s negligence, since they both had a direct emotional involvement in their child’s birth. Therefore they were entitled to damages for their emotional suffering without resorting to the rule in Alsuha v. Estate of Dahan.
Keywords
Torts -- Compensation, Torts -- Exemptions from liability
