The Problem of Uncertain Factual Causation in Israeli Tort Law

Abstract

Tort law in Israel, like that in many other countries, is confronted with the difficult problem of uncertain causation. The traditional approach – requiring that causation be established by a preponderance of evidence – is still in principle maintained in Israeli tort law, but case law has established a number of exceptions. In a case of medical malpractice the hospital was judged to have been negligent by delaying a caesarian section for 45 minutes. The Supreme Court sitting as a Civil Appeal Court estimated the probability of the damage caused by the negligent delay to be 20% and imposed that measure of the damage upon the hospital as damages. In a Further Hearing, the Supreme Court overruled the decision of its appeal panel by a majority vote of five to four. The majority decided that in the given circumstances a preponderance of probability was required in relation to causation. The sophisticated theoretical and comparative analyses of both majority and minority opinions are assuredly of a broader interest. Of special interest is the doctrine of ‘recurrent tendentiousness’ elaborated by Deputy President Rivlin. In his view it constitutes the general criterion for all the cases where one may deviate from the general requirement of preponderance of evidence. The criterion is based upon four elements: a wrongdoer, a group of victims, a common recurrent risk and a consistent tendentiousness in favour of one litigant when applying the rule of preponderance of evidence. The author of this paper, however, is of the opinion that the solution of causal proportional liability should be left to the legislator’s initiative.