14. The claim for negligence – discussion and ruling
a. Having reviewed the evidence and the arguments from both parties I have concluded that the elements of a negligence claim do not arise in this case.
b. Section 35 of the Ordinance states: “A person acting in the same circumstances that a reasonably intelligent person would not have acted, or a person omitting to act in the same circumstances where a reasonably intelligent person would have acted is negligent” (my emphasis)
c. Therefore, the legislator tells us that the duty of care should be examined against the background of the IDF’s activities and the conditions surrounding it (section 35 states “in the same circumstances” ). In this context, I will mention that I have already assessed the circumstances in the “Philadelphi corridor” area and the danger in being present in the area and I do not see the need to repeat that.
d. I considered the ground exposure work and ruled that it was a “war-related activity”. The mission carried out that day by the soldiers was a necessary action. The significance of postponing this mission would have meant exposing IDF soldiers and Israeli citizens to harm.
e. As has already been mentioned, the Organisation’s activists wanted to impede the ground exposure work in any way they could. The IDF soldiers invested a great deal of effort in order not to harm them. I consider that in the circumstances, the tragic result of the deceased’s death was caused only due to the defendant exposing herself to risk and the careless and irresponsible manner in which she acted when she chose to place herself in front of the bulldozer and kneel before it, in circumstances where the bulldozer driver could not have seen her. The deceased could have run away from the bulldozer and the dirt pile but chose not to do so. In the circumstances I cannot see how the defendant breached the duty of care or how it has been negligent.
f. When the court considers whether a person’s conduct amounts to a breach of duty of care, it must examine whether the behaviour was reasonable. Reasonableness is a relative term. It is determined by identifying and balancing the relevant considerations. Reasonableness cannot be determined in a void – it is always fact sensitive. Reasonableness does not call for taking every step possible in order to remove the risk. Rather, reasonableness demands taking reasonable precautions in order to remove the risk.Indeed, in this case the IDF soldiers acted reasonably in the circumstances in which the mission force was operating. It was not possible to separate the behaviour from the conditions surrounding it. It cannot be transferred into “lab conditions”.
It should be recalled that the IDF forces operating in the area were acting under double pressure. On the one hand, they were exposed to danger from the Palestinian terrorists waiting for an opportune moment to take sniper shots at them or use other weapons in order to harm them. On the other hand, they had to deal with activists of an organisation operating against the law who were intent on disrupting the soldiers from fulfilling their task which was intended to prevent hostile and terrorist activities.
g. As I have already mentioned above, I accept the defendant’s case that the vehicle safety procedure is not relevant to this case. This is because the said procedures are not applicable in operational circumstances. See S.L’s witness statement.See also Y.A’s witness statement who testified that the IDF safety guidelines were intended for routine and training situations, and not to war activities such as the one the soldiers were in.Therefore, I do not find a breach of the duty of care arising out of the allegation that the bulldozer’s driver failed to adhere to the guidelines.
h. In spite of the fact that the soldiers’ task was not house demolition on the day in question, they were briefed in advance that foreign civilians might be present in the area and disrupt the work. The instructions were that the civilians should be avoided and not injured. While carrying out the mission, and when the foreigners approached the team, the soldiers took a number of actions in order to make it clear to the activists that their presence in the area is prohibited, and that they should disperse. Initially, the soldiers used a loudspeaker to tell the activists to stay away, then the soldiers threw a stunt grenade and fired warning shots. Since those actions did not yield the desired effect, the soldiers used crowd dispersal methods. The soldiers even retreated south several times in order to avoid getting near the foreigners until they backed up very closely to the base they came from.I cannot accept the claimants’ case that the bulldozer’s driver, even if he considered that the foreigners were not in the bulldozer’s proximity, should have stopped the work.
The IDF force was engaged in operational action. It was careful not to harm civilians and acted in order to keep them away. It could not be expected from an army acting under circumstances of daily war in a dangerous area, such as the “Philadelphi corridor”, to stop its essential work for state security every time a group of civilians acts unlawfully, breaches a Major General’s Directive, and interrupts it from fulfilling its mission, even when the force is persuaded at that particular moment that it can continue operating without harming civilians. If the army was to operate as suggested by the claimants’ representative then the IDF could not have fulfilled its duty to maintain state security. This would mean a dereliction of state security due to the unlawful action of civilians whose opinions differ from that of Israeli security forces.
The claimants claim that the soldiers should have arrested the activists on the ground is not acceptable and I reject it. As has been said before, it was proved that due to risk to life the soldiers were completely prohibited from leaving their vehicles (the testimony of Colonel Zuaretz). I determine that the IDF force operated on the day in question in a reasonable and cautious manner in all the circumstances and I do not see any reason to attribute any carelessness to it.
i. I am persuaded that the ground exposure action was necessary and pressing and could not have been stopped at any given moment, as has been suggested by the claimants’ representative.
j. My impression is that the defendant took reasonable steps in order to improve the bulldozer team’s field of view. As the latter was lacking, and since there was a complete prohibition to position an external director during the works in the “Philadelphi Corridor”, a team of two soldiers, a commander and an operator was required in order to improve the bulldozer’s field of view (the defendant’s expert witness, Yoram Manshuri). Therefore, approximately two years ago the process of installing cameras on the bulldozer in order to improve the field of view was under development. As it turned out, on the one hand it was very expensive and on the other hand, its effectiveness was highly questionable in light of the strong vibrations of the bulldozer (see Yoram Manshuri’s testimony).
On the basis of the material before me I am persuaded that bringing additional forces and/or vehicles to the area, in order to deal with the limited field of view would not have helped and would have in fact put the IDF soldiers and those around the vehicles in greater danger (see S.R’s testimony and Major Zuaretz’s testimony).I am persuaded that in the circumstances the actions of the force was beyond reproach. Indeed, the bulldozer’s driver’s field of view was restricted. However, the deceased’s field of view, while she was standing in front of the bulldozer and kneeling, was not. The deceased could have stepped away from danger without great difficulty. However, she chose to endanger herself as has been described above, and eventually found her death in this way.
k. The head of the IDF Warfare Theory, Weapons and Skills division, Y.A. wrote in his statement that after the incident he was in charge of the re-enactment in order to check the restriction in the soldier’s field of view. He states, “the conclusions of the re-enactment prove that in view of the restricted field of view, and due to the deceased’s position behind a pile of dirt, the soldiers in the bulldozer were unable to see her and prevent the incident” .
l. I am persuaded that in the circumstances the soldiers acted in a proportionate and reasonable manner and made every effort not to harm the civilians around them.However, it seems as though the ISM activists, including the deceased made every effort to impede the IDF mission. They were prepared to risk themselves in the name of the ideology they were seeking to promote. They acted through indifference and complacency and in full knowledge of the dangers brought about by their actions.
In light of the circumstances, I consider that it was not the negligence of the defendant or its representatives which caused the deceased’s death. I therefore reject the claimants’ claim for negligence.
15. Volenti non fit injuria or “willing endangerment”
The defendant’s case
a. The defendant claims that the deceased’s behaviour during the incident amounted to Volenti non fit injuria as defined in section 5(a) of the Ordinance.
b. The defendant states that all its witnesses have unanimously commented upon the foreign activists’ behaviour, including the deceased, to expose themselves wilfully to risk. The witnesses stated that the deceased and the other activists were aware of the risks and acted irrationally while risking their own lives.The defendant states that some of the claimants’ own witnesses confirm that they were aware of the dangers in the area and were willing to take the risk to life and limb upon themselves, with all the consequences arising from it.
a The claimants’ case
a. The claimants state that none of the three criteria required in law for Volenti non fit injuria operate in this case. Those criteria are that the injured party should have had detailed knowledge of the risk he was being exposed to, actively exposed himself to the risky circumstances both physically and lawfully and he should have done so willingly and out his own volition.
b. The claimants state that relying on Volenti defence has been unsuccessful both in Israel and in other common law countries and has been interpreted narrowly.Therefore, it could only be said in exceptional circumstances that a reasonable person has willingly forgone the legal right to claim compensation for injury.
c. The claimants state that in this case it is very difficult to say that the deceased was complexly aware of all the facts and circumstances which exposed her to injury, before the injury had occurred. It was possible that the deceased had a probable knowledge about the bulldozer’s operator’s negligence, but she did not know for certain that negligence was going to occur. “Moreover, it is very difficult to prove that she had any foresight of the nature and degree of the bulldozer’s operator’s unreasonable behaviour and the nature and extent of the risk which could be caused as a result of such behaviour” .
d. The claimants state that “it is very difficult to determine that it has been established that the deceased was aware of all the elements of risk to which she had exposed herself when standing before the bulldozer while it was travelling, in order to stop it from continuing to travel, which resulted in her being buried in the pile of dirt”. In addition, “it is insufficient for the tortfeas or to prove that the injured party was in a situation where he had consented to a certain level of negligence arising out of existing risk, but he ought to prove that the injured party could foresee precisely that specific negligence and has knowingly consented to assume the risk for it materialising” .
e. The claimants state that the deceased and two of her friends wore high-visibility jackets on the day in question in order to ensure that they were visible to the bulldozer operators. They were carrying banners protesting against house demolitions and waved their arms in order to alert the bulldozers’ operators to their presence.Therefore, the claimants’ state that the deceased and her friends had every desire to continue living, and had done everything in their power in order to alert the bulldozers’ operators to their presence.
f. On this basis the claimants claim that the Volenti defence should be rejected.
16. Volenti non fit injuria – discussion
a. Section 5(a) to the Ordinance states: “It shall be a complete defence of Volenti non fit injuria where a claimant has full knowledge or it can be assumed that he had full knowledge of the circumstances which gave rise to injury, and he has exposed himself, or his property, to these circumstances voluntarily” ,Precedent has indicated that this defence depends on establishing three criteria:The claimant’s knowledge about the circumstances giving rise to risk, including assessing the nature of the risk;
The claimant’s exposure to the legal implications of the risk;The claimant’s willingness to expose himself to the risk without compensation (case of Akhasha Mahmood v the State of Israel )
b. I have considered the parties’ arguments and the evidence the defendant has referred me to in its summing up. I remain unpersuaded that in this case all three criteria are fulfilled.
Therefore, I conclude that in this case Volenti non fit injuria has not been successfully argued. Nevertheless, I have already ruled that it was not the defendant or its representatives’ negligence which caused the deceased’s death. Therefore, notwithstanding the fact that the above defence does not apply to this case, it is insufficient in order to change my ruling about dismissing the claim.
17. Contributory negligence
a. The defendant’s case
The defendant states that “the deceased’s contributory negligence was significant to a degree of 100%, which severs any causal link (even if one had existed) and nullifies the claim. This is pursuant to sections 65 and 68 of the Ordinance 1068” [error in the original text]. The claimants referred the court to the case Mutual Funds Limited v Awad 1990where it was determined that contributory negligence was established using there asonable person test.The defendant states that in this case it was proved that the soldiers acted in are asonable manner, took every reasonable step in order to avoid injuring innocent parties and all in accordance with the risk and the circumstances they were faced with given the war which waged in the Corridor.
By contrast, the deceased and her friends had behaved in an unreasonable manner which exacerbated the damage which was caused. The deceased and her friends arrived in a war zone which was decreed as a closed military zone and did not adhere to any of the soldiers’ attempts to persuade them to leave the area. The deceased acted against the IDF soldiers’ instructions. She saw the heavy bulldozer operating in the area. A reasonable person would have kept away from this large vehicle, but the deceased approached it, kneeled and chose to climb the pile of dirt.Therefore, the defendant states that in view of the cautious and reasonable behaviour of the soldiers, the deceased and her friends were acting entirely carelessly, while showing complete contempt to the instructions of the IDF soldiers and to any minimal safety instructions.
The deceased and her friends were indifferent to the inevitable outcome of their careless behaviour. It was claimed that the deceased had knowingly exposed herself to risk because she knowingly and deliberately entered a military-zone in order to interrupt the soldiers’ ground exposure mission and therefore a particularly high contributory negligence factor should be determined at a rate of 100% (see for example the case of Yasswe Shath v The state of Israel 1998).
b. The claimant’s case
The claimants addressed contributory negligence only in their closing remarks.The claimants state that the defendant’s basic assumption in relation to the soldiers’ reasonable behaviour in the circumstances is entirely erroneous. The claimants state that the opposite is true, that the soldiers’ negligence in the circumstances was on its face extreme and unreasonable. It was claimed that the soldiers grossly violated the IDF safety procedures whereby it is completely prohibited to operate the bulldozers where there are people in the proximity who could be harmed as a result.
The claimants state that there is no more criminal negligence than that.Furthermore, the claimants referred the court again to defence witness statements,which allude to the fact that a conscious decision was made to continue operating the bulldozers in spite of the danger to civilians and protestors present in the area. The operations diary presents irrefutable proof that the decision to continue with the ground exposure activity was made out of fear that a “dangerous precedent” will beset and not due to the military necessity as the defendant argues.
Precedent states that the burden of proof for establishing contributory negligence lies with the defendant. When the court examines whether or not contributory negligence has been established, it must weigh the actions of the claimant and the defendant side by side and examine each side’s actions and omissions.In this case, the claimants claim, it was established that the moral culpability of the defendant is immeasurably larger than that of the deceased. All the deceased sought to do was to exercise her right to protest against house demolitions. The defendant,conversely, had grossly violated the most basic safety procedures which it created itself, by operating the bulldozer.In any event, the claimants state this claim is not solely based on the law of tort, but on other sources of law including human rights law, the Israeli Basic Law: Human Dignity and Liberty and the right to life.
Therefore, since this is a fundamental breach of constitutional law, there is no place for contributory negligence.Further, and in the alternative, the claimants state that even if it was determined that the deceased’s behaviour gave rise to contributory negligence, then in any event the defendant’s own negligence was more crucial in the circumstances. The defendant’s witnesses stated that they were aware that the protestors were present in the area for a number of hours, the deceased and her friends were wearing high-visibility prominent jackets and the deceased was holding a loudspeaker and banners for a significant proportion of the incident.
18. Contributory negligence – discussion and ruling
I consider that the issue of contributory negligence should not have been brought before the court during the present discussion.At this stage we are only dealing with the question of responsibility and precedent states that: “Contributory negligence is a complete defence for the tortfeasor not from the responsibility for personal injury, but from the duty to compensate the injured party fully for its injury” (Y Englard)
In the circumstances, I do not see any need to discuss at this stage the question of contributory negligence.
19. Constitutional wrongdoing, proportionality and international law.
The claimants state that the defendant breached the deceased’s right to life and as such, acted against the principles set in the Israeli Basic Law: Human Dignity and Liberty.
The claimants state that in the case of a breach of a constitutional right, which is a basic right carrying greater protection than normal legislation, compensation is due as a result of the actions of the State even if it had been determined that it was not negligent.The claimants state that “the right to life is a basic constitutional right given to every person. The right is inextricably linked with the principle of the sanctity of life, which is part of the Israeli judicial system. The constitutional status of this right is based in a ruling of section 1 of the Basic Law:
Human Dignity and Liberty which determines that “the fundamental rights of persons in Israel are founded upon the recognition of the value of man, the sanctity of life and freedom...” The right to life is also founded in section 4 of the basic law, which states: “every person is entitled to protection of his life, his body and his integrity” Furthermore, the claimants state that the right to life has been expressed in international human rights law in two international treaties which Israel is signatory to and has ratified.Regarding the applicability of international humanitarian law on this case, the claimants state that as an occupying power and as the effective ruler of the territories,the state of Israel must guarantee the safety and security of the residents of the territories. This duty, it was claimed, is founded in international treaties which Israelis signatory to.
According to Israeli law, international law forms part of the domestic law and falls to be considered, providing it does not contradict Israeli legislation. In addition, the claimants state that according to the “compatibility principle” the courts must interpret domestic law, as far as it is possible, as compatible with Israel’s international obligations, as expressed in the international treaties and customary international law.The claimants state that intentional humanitarian law is applicable in the Gaza strip,including the “Philadelphi corridor”. Those are occupied territories and as such, the rules of international humanitarian law are applicable. Precedent states that even during times of war, the rules of international humanitarian law must be respected.Accordingly, the claimants state that the State should compensate citizen who were injured in the occupied territories. The duty is a positive one, which includes preventing injury to the occupied population and to act in order to ensure their safety and security.
The claimants addressed in their closing submission to the principle of “distinction”which distinguishes between soldiers and civilians at times of war and prohibits harming of civilians. This is a principle which has been clearly expressed in the treaties Israel is signatory to which is part of the customary law accepted around the world. According to this principle, a soldier’s right to kill is limited only to enemy soldiers. It is absolutely prohibited to physically harm any non-combatants. It is completely prohibited on all combating sides to attack non-military targets.
A complimentary principle to the [distinction principle] is the duty to take precautions. This duty obligates parties to take every possible precaution in order to prevent or mitigate the risk to the lives of civilians or civilian targets. In this case, the claimants claim that if the bulldozer’s aim was “operational war activity” as the defendant claims, then the principle of distinction and the duty of caution should have applied to the situation.In addition, the claimants referred in their closing submissions to the principle of proportionality decided by the Supreme Court, and claimed that the State’s struggle against the Palestinian organisations does not happen in a vacuum, but according to laws and procedures. In all the circumstances where the State conducts combat against hostile fractions, the rule is that injuring innocent civilians must, inter alia, take account of the principle of proportionality.
This principle states that attacking innocent civilians is prohibited, and this is done by weighing the damage caused against the military benefit achieved.The claimants state that putting the above principles and tests into practice leads one to the conclusion that in view of the totality of the circumstances as stated above, it is difficult to demonstrate that the soldiers were in any real danger in any of the three armoured vehicles on the ground.
The deceased did not risk the life of the bulldozer operator. The deceased’s death was caused in circumstances where flawed discretion and skewed consideration of the various risks arising from the ground exposure action. The claimants state that the deceased’s death raises a moral question of great significance since due to the State’s need to continue the ground exposure work at any cost, the death of an innocent individual was caused. It was claimed that this behaviour was disproportionate and the defendant should not be allowed to use the defence of war related activity as a crutch.
20. Constitutional wrong – discussion
a. In considering this part of the judgment I would like to point out that the defendant failed to refer to this matter at all in its submissions. Therefore, I do not know the State’s position in relation to this matter.
b. Indeed, the question of whether or not it is inappropriate to rule, in a suitable case,that compensation is payable even without negligence for those whose constitutional rights have been breached and who have suffered injury was raised in previous cases, but without reaching a ruling (see case of Kibbutz Malika v State of Israel 2000) In the case above HHJ Theodor Or stated that the question remains to be considered but “(...) in the judicial literature and obiter comments a trend is emerging whereby where a constitutional right is breached, legislative comfort might be given”.
However, this ruling is relevant to those whose constitutional right have been breached.Indeed, the deceased found her death in the incident which is the subject of this claim.
However, in this case the defendant did not breach the deceased’s right to life. The deceased put herself in a dangerous situation. She stood in front of a large bulldozer in a spot where the bulldozer’s driver could not have seen her. Even when she saw the dirt pile approaching her and endangering her she did not move away from the area unlike any reasonable person would do in the circumstances.
She began to climb the pile of dirt, fell over and finally found her death.The deceased’s death was caused due to an accident the deceased has brought upon herself. This was despite the attempts made by the IDF forces to remove her and her friends from the area.I consider that in these circumstances there is no justification to oblige the State to pay compensation for damages which the deceased could have prevented but preferred not to, and as such endangered her life in the way that she did.
Therefore, I dismiss the claim to order the State to pay compensation based on a constitutional wrong.
21. Conclusion On the basis of the above I reject this claim.
Due to the circumstances in which the deceased found her death I will avoid awarding costs against the claimants and instead order that each party will bear its own costs.
A summary of this judgment was read in public in the presence of the lawyers,Attorneys Hussein Abu-Hussein, Jamil Dakwar and Reem Masawara for the claimants, Attorneys Irit Kalman-Brom and Nir Gancharski for the defendant. A typed copy of the judgment was handed to the parties.
28 August 2012
Signature of Judge Oded Gershon
This unofficial translation is by Irène Solomon
a. Having reviewed the evidence and the arguments from both parties I have concluded that the elements of a negligence claim do not arise in this case.
b. Section 35 of the Ordinance states: “A person acting in the same circumstances that a reasonably intelligent person would not have acted, or a person omitting to act in the same circumstances where a reasonably intelligent person would have acted is negligent” (my emphasis)
c. Therefore, the legislator tells us that the duty of care should be examined against the background of the IDF’s activities and the conditions surrounding it (section 35 states “in the same circumstances” ). In this context, I will mention that I have already assessed the circumstances in the “Philadelphi corridor” area and the danger in being present in the area and I do not see the need to repeat that.
d. I considered the ground exposure work and ruled that it was a “war-related activity”. The mission carried out that day by the soldiers was a necessary action. The significance of postponing this mission would have meant exposing IDF soldiers and Israeli citizens to harm.
e. As has already been mentioned, the Organisation’s activists wanted to impede the ground exposure work in any way they could. The IDF soldiers invested a great deal of effort in order not to harm them. I consider that in the circumstances, the tragic result of the deceased’s death was caused only due to the defendant exposing herself to risk and the careless and irresponsible manner in which she acted when she chose to place herself in front of the bulldozer and kneel before it, in circumstances where the bulldozer driver could not have seen her. The deceased could have run away from the bulldozer and the dirt pile but chose not to do so. In the circumstances I cannot see how the defendant breached the duty of care or how it has been negligent.
f. When the court considers whether a person’s conduct amounts to a breach of duty of care, it must examine whether the behaviour was reasonable. Reasonableness is a relative term. It is determined by identifying and balancing the relevant considerations. Reasonableness cannot be determined in a void – it is always fact sensitive. Reasonableness does not call for taking every step possible in order to remove the risk. Rather, reasonableness demands taking reasonable precautions in order to remove the risk.Indeed, in this case the IDF soldiers acted reasonably in the circumstances in which the mission force was operating. It was not possible to separate the behaviour from the conditions surrounding it. It cannot be transferred into “lab conditions”.
It should be recalled that the IDF forces operating in the area were acting under double pressure. On the one hand, they were exposed to danger from the Palestinian terrorists waiting for an opportune moment to take sniper shots at them or use other weapons in order to harm them. On the other hand, they had to deal with activists of an organisation operating against the law who were intent on disrupting the soldiers from fulfilling their task which was intended to prevent hostile and terrorist activities.
g. As I have already mentioned above, I accept the defendant’s case that the vehicle safety procedure is not relevant to this case. This is because the said procedures are not applicable in operational circumstances. See S.L’s witness statement.See also Y.A’s witness statement who testified that the IDF safety guidelines were intended for routine and training situations, and not to war activities such as the one the soldiers were in.Therefore, I do not find a breach of the duty of care arising out of the allegation that the bulldozer’s driver failed to adhere to the guidelines.
h. In spite of the fact that the soldiers’ task was not house demolition on the day in question, they were briefed in advance that foreign civilians might be present in the area and disrupt the work. The instructions were that the civilians should be avoided and not injured. While carrying out the mission, and when the foreigners approached the team, the soldiers took a number of actions in order to make it clear to the activists that their presence in the area is prohibited, and that they should disperse. Initially, the soldiers used a loudspeaker to tell the activists to stay away, then the soldiers threw a stunt grenade and fired warning shots. Since those actions did not yield the desired effect, the soldiers used crowd dispersal methods. The soldiers even retreated south several times in order to avoid getting near the foreigners until they backed up very closely to the base they came from.I cannot accept the claimants’ case that the bulldozer’s driver, even if he considered that the foreigners were not in the bulldozer’s proximity, should have stopped the work.
The IDF force was engaged in operational action. It was careful not to harm civilians and acted in order to keep them away. It could not be expected from an army acting under circumstances of daily war in a dangerous area, such as the “Philadelphi corridor”, to stop its essential work for state security every time a group of civilians acts unlawfully, breaches a Major General’s Directive, and interrupts it from fulfilling its mission, even when the force is persuaded at that particular moment that it can continue operating without harming civilians. If the army was to operate as suggested by the claimants’ representative then the IDF could not have fulfilled its duty to maintain state security. This would mean a dereliction of state security due to the unlawful action of civilians whose opinions differ from that of Israeli security forces.
The claimants claim that the soldiers should have arrested the activists on the ground is not acceptable and I reject it. As has been said before, it was proved that due to risk to life the soldiers were completely prohibited from leaving their vehicles (the testimony of Colonel Zuaretz). I determine that the IDF force operated on the day in question in a reasonable and cautious manner in all the circumstances and I do not see any reason to attribute any carelessness to it.
i. I am persuaded that the ground exposure action was necessary and pressing and could not have been stopped at any given moment, as has been suggested by the claimants’ representative.
j. My impression is that the defendant took reasonable steps in order to improve the bulldozer team’s field of view. As the latter was lacking, and since there was a complete prohibition to position an external director during the works in the “Philadelphi Corridor”, a team of two soldiers, a commander and an operator was required in order to improve the bulldozer’s field of view (the defendant’s expert witness, Yoram Manshuri). Therefore, approximately two years ago the process of installing cameras on the bulldozer in order to improve the field of view was under development. As it turned out, on the one hand it was very expensive and on the other hand, its effectiveness was highly questionable in light of the strong vibrations of the bulldozer (see Yoram Manshuri’s testimony).
On the basis of the material before me I am persuaded that bringing additional forces and/or vehicles to the area, in order to deal with the limited field of view would not have helped and would have in fact put the IDF soldiers and those around the vehicles in greater danger (see S.R’s testimony and Major Zuaretz’s testimony).I am persuaded that in the circumstances the actions of the force was beyond reproach. Indeed, the bulldozer’s driver’s field of view was restricted. However, the deceased’s field of view, while she was standing in front of the bulldozer and kneeling, was not. The deceased could have stepped away from danger without great difficulty. However, she chose to endanger herself as has been described above, and eventually found her death in this way.
k. The head of the IDF Warfare Theory, Weapons and Skills division, Y.A. wrote in his statement that after the incident he was in charge of the re-enactment in order to check the restriction in the soldier’s field of view. He states, “the conclusions of the re-enactment prove that in view of the restricted field of view, and due to the deceased’s position behind a pile of dirt, the soldiers in the bulldozer were unable to see her and prevent the incident” .
l. I am persuaded that in the circumstances the soldiers acted in a proportionate and reasonable manner and made every effort not to harm the civilians around them.However, it seems as though the ISM activists, including the deceased made every effort to impede the IDF mission. They were prepared to risk themselves in the name of the ideology they were seeking to promote. They acted through indifference and complacency and in full knowledge of the dangers brought about by their actions.
In light of the circumstances, I consider that it was not the negligence of the defendant or its representatives which caused the deceased’s death. I therefore reject the claimants’ claim for negligence.
15. Volenti non fit injuria or “willing endangerment”
The defendant’s case
a. The defendant claims that the deceased’s behaviour during the incident amounted to Volenti non fit injuria as defined in section 5(a) of the Ordinance.
b. The defendant states that all its witnesses have unanimously commented upon the foreign activists’ behaviour, including the deceased, to expose themselves wilfully to risk. The witnesses stated that the deceased and the other activists were aware of the risks and acted irrationally while risking their own lives.The defendant states that some of the claimants’ own witnesses confirm that they were aware of the dangers in the area and were willing to take the risk to life and limb upon themselves, with all the consequences arising from it.
a The claimants’ case
a. The claimants state that none of the three criteria required in law for Volenti non fit injuria operate in this case. Those criteria are that the injured party should have had detailed knowledge of the risk he was being exposed to, actively exposed himself to the risky circumstances both physically and lawfully and he should have done so willingly and out his own volition.
b. The claimants state that relying on Volenti defence has been unsuccessful both in Israel and in other common law countries and has been interpreted narrowly.Therefore, it could only be said in exceptional circumstances that a reasonable person has willingly forgone the legal right to claim compensation for injury.
c. The claimants state that in this case it is very difficult to say that the deceased was complexly aware of all the facts and circumstances which exposed her to injury, before the injury had occurred. It was possible that the deceased had a probable knowledge about the bulldozer’s operator’s negligence, but she did not know for certain that negligence was going to occur. “Moreover, it is very difficult to prove that she had any foresight of the nature and degree of the bulldozer’s operator’s unreasonable behaviour and the nature and extent of the risk which could be caused as a result of such behaviour” .
d. The claimants state that “it is very difficult to determine that it has been established that the deceased was aware of all the elements of risk to which she had exposed herself when standing before the bulldozer while it was travelling, in order to stop it from continuing to travel, which resulted in her being buried in the pile of dirt”. In addition, “it is insufficient for the tortfeas or to prove that the injured party was in a situation where he had consented to a certain level of negligence arising out of existing risk, but he ought to prove that the injured party could foresee precisely that specific negligence and has knowingly consented to assume the risk for it materialising” .
e. The claimants state that the deceased and two of her friends wore high-visibility jackets on the day in question in order to ensure that they were visible to the bulldozer operators. They were carrying banners protesting against house demolitions and waved their arms in order to alert the bulldozers’ operators to their presence.Therefore, the claimants’ state that the deceased and her friends had every desire to continue living, and had done everything in their power in order to alert the bulldozers’ operators to their presence.
f. On this basis the claimants claim that the Volenti defence should be rejected.
16. Volenti non fit injuria – discussion
a. Section 5(a) to the Ordinance states: “It shall be a complete defence of Volenti non fit injuria where a claimant has full knowledge or it can be assumed that he had full knowledge of the circumstances which gave rise to injury, and he has exposed himself, or his property, to these circumstances voluntarily” ,Precedent has indicated that this defence depends on establishing three criteria:The claimant’s knowledge about the circumstances giving rise to risk, including assessing the nature of the risk;
The claimant’s exposure to the legal implications of the risk;The claimant’s willingness to expose himself to the risk without compensation (case of Akhasha Mahmood v the State of Israel )
b. I have considered the parties’ arguments and the evidence the defendant has referred me to in its summing up. I remain unpersuaded that in this case all three criteria are fulfilled.
Therefore, I conclude that in this case Volenti non fit injuria has not been successfully argued. Nevertheless, I have already ruled that it was not the defendant or its representatives’ negligence which caused the deceased’s death. Therefore, notwithstanding the fact that the above defence does not apply to this case, it is insufficient in order to change my ruling about dismissing the claim.
17. Contributory negligence
a. The defendant’s case
The defendant states that “the deceased’s contributory negligence was significant to a degree of 100%, which severs any causal link (even if one had existed) and nullifies the claim. This is pursuant to sections 65 and 68 of the Ordinance 1068” [error in the original text]. The claimants referred the court to the case Mutual Funds Limited v Awad 1990where it was determined that contributory negligence was established using there asonable person test.The defendant states that in this case it was proved that the soldiers acted in are asonable manner, took every reasonable step in order to avoid injuring innocent parties and all in accordance with the risk and the circumstances they were faced with given the war which waged in the Corridor.
By contrast, the deceased and her friends had behaved in an unreasonable manner which exacerbated the damage which was caused. The deceased and her friends arrived in a war zone which was decreed as a closed military zone and did not adhere to any of the soldiers’ attempts to persuade them to leave the area. The deceased acted against the IDF soldiers’ instructions. She saw the heavy bulldozer operating in the area. A reasonable person would have kept away from this large vehicle, but the deceased approached it, kneeled and chose to climb the pile of dirt.Therefore, the defendant states that in view of the cautious and reasonable behaviour of the soldiers, the deceased and her friends were acting entirely carelessly, while showing complete contempt to the instructions of the IDF soldiers and to any minimal safety instructions.
The deceased and her friends were indifferent to the inevitable outcome of their careless behaviour. It was claimed that the deceased had knowingly exposed herself to risk because she knowingly and deliberately entered a military-zone in order to interrupt the soldiers’ ground exposure mission and therefore a particularly high contributory negligence factor should be determined at a rate of 100% (see for example the case of Yasswe Shath v The state of Israel 1998).
b. The claimant’s case
The claimants addressed contributory negligence only in their closing remarks.The claimants state that the defendant’s basic assumption in relation to the soldiers’ reasonable behaviour in the circumstances is entirely erroneous. The claimants state that the opposite is true, that the soldiers’ negligence in the circumstances was on its face extreme and unreasonable. It was claimed that the soldiers grossly violated the IDF safety procedures whereby it is completely prohibited to operate the bulldozers where there are people in the proximity who could be harmed as a result.
The claimants state that there is no more criminal negligence than that.Furthermore, the claimants referred the court again to defence witness statements,which allude to the fact that a conscious decision was made to continue operating the bulldozers in spite of the danger to civilians and protestors present in the area. The operations diary presents irrefutable proof that the decision to continue with the ground exposure activity was made out of fear that a “dangerous precedent” will beset and not due to the military necessity as the defendant argues.
Precedent states that the burden of proof for establishing contributory negligence lies with the defendant. When the court examines whether or not contributory negligence has been established, it must weigh the actions of the claimant and the defendant side by side and examine each side’s actions and omissions.In this case, the claimants claim, it was established that the moral culpability of the defendant is immeasurably larger than that of the deceased. All the deceased sought to do was to exercise her right to protest against house demolitions. The defendant,conversely, had grossly violated the most basic safety procedures which it created itself, by operating the bulldozer.In any event, the claimants state this claim is not solely based on the law of tort, but on other sources of law including human rights law, the Israeli Basic Law: Human Dignity and Liberty and the right to life.
Therefore, since this is a fundamental breach of constitutional law, there is no place for contributory negligence.Further, and in the alternative, the claimants state that even if it was determined that the deceased’s behaviour gave rise to contributory negligence, then in any event the defendant’s own negligence was more crucial in the circumstances. The defendant’s witnesses stated that they were aware that the protestors were present in the area for a number of hours, the deceased and her friends were wearing high-visibility prominent jackets and the deceased was holding a loudspeaker and banners for a significant proportion of the incident.
18. Contributory negligence – discussion and ruling
I consider that the issue of contributory negligence should not have been brought before the court during the present discussion.At this stage we are only dealing with the question of responsibility and precedent states that: “Contributory negligence is a complete defence for the tortfeasor not from the responsibility for personal injury, but from the duty to compensate the injured party fully for its injury” (Y Englard)
In the circumstances, I do not see any need to discuss at this stage the question of contributory negligence.
19. Constitutional wrongdoing, proportionality and international law.
The claimants state that the defendant breached the deceased’s right to life and as such, acted against the principles set in the Israeli Basic Law: Human Dignity and Liberty.
The claimants state that in the case of a breach of a constitutional right, which is a basic right carrying greater protection than normal legislation, compensation is due as a result of the actions of the State even if it had been determined that it was not negligent.The claimants state that “the right to life is a basic constitutional right given to every person. The right is inextricably linked with the principle of the sanctity of life, which is part of the Israeli judicial system. The constitutional status of this right is based in a ruling of section 1 of the Basic Law:
Human Dignity and Liberty which determines that “the fundamental rights of persons in Israel are founded upon the recognition of the value of man, the sanctity of life and freedom...” The right to life is also founded in section 4 of the basic law, which states: “every person is entitled to protection of his life, his body and his integrity” Furthermore, the claimants state that the right to life has been expressed in international human rights law in two international treaties which Israel is signatory to and has ratified.Regarding the applicability of international humanitarian law on this case, the claimants state that as an occupying power and as the effective ruler of the territories,the state of Israel must guarantee the safety and security of the residents of the territories. This duty, it was claimed, is founded in international treaties which Israelis signatory to.
According to Israeli law, international law forms part of the domestic law and falls to be considered, providing it does not contradict Israeli legislation. In addition, the claimants state that according to the “compatibility principle” the courts must interpret domestic law, as far as it is possible, as compatible with Israel’s international obligations, as expressed in the international treaties and customary international law.The claimants state that intentional humanitarian law is applicable in the Gaza strip,including the “Philadelphi corridor”. Those are occupied territories and as such, the rules of international humanitarian law are applicable. Precedent states that even during times of war, the rules of international humanitarian law must be respected.Accordingly, the claimants state that the State should compensate citizen who were injured in the occupied territories. The duty is a positive one, which includes preventing injury to the occupied population and to act in order to ensure their safety and security.
The claimants addressed in their closing submission to the principle of “distinction”which distinguishes between soldiers and civilians at times of war and prohibits harming of civilians. This is a principle which has been clearly expressed in the treaties Israel is signatory to which is part of the customary law accepted around the world. According to this principle, a soldier’s right to kill is limited only to enemy soldiers. It is absolutely prohibited to physically harm any non-combatants. It is completely prohibited on all combating sides to attack non-military targets.
A complimentary principle to the [distinction principle] is the duty to take precautions. This duty obligates parties to take every possible precaution in order to prevent or mitigate the risk to the lives of civilians or civilian targets. In this case, the claimants claim that if the bulldozer’s aim was “operational war activity” as the defendant claims, then the principle of distinction and the duty of caution should have applied to the situation.In addition, the claimants referred in their closing submissions to the principle of proportionality decided by the Supreme Court, and claimed that the State’s struggle against the Palestinian organisations does not happen in a vacuum, but according to laws and procedures. In all the circumstances where the State conducts combat against hostile fractions, the rule is that injuring innocent civilians must, inter alia, take account of the principle of proportionality.
This principle states that attacking innocent civilians is prohibited, and this is done by weighing the damage caused against the military benefit achieved.The claimants state that putting the above principles and tests into practice leads one to the conclusion that in view of the totality of the circumstances as stated above, it is difficult to demonstrate that the soldiers were in any real danger in any of the three armoured vehicles on the ground.
The deceased did not risk the life of the bulldozer operator. The deceased’s death was caused in circumstances where flawed discretion and skewed consideration of the various risks arising from the ground exposure action. The claimants state that the deceased’s death raises a moral question of great significance since due to the State’s need to continue the ground exposure work at any cost, the death of an innocent individual was caused. It was claimed that this behaviour was disproportionate and the defendant should not be allowed to use the defence of war related activity as a crutch.
20. Constitutional wrong – discussion
a. In considering this part of the judgment I would like to point out that the defendant failed to refer to this matter at all in its submissions. Therefore, I do not know the State’s position in relation to this matter.
b. Indeed, the question of whether or not it is inappropriate to rule, in a suitable case,that compensation is payable even without negligence for those whose constitutional rights have been breached and who have suffered injury was raised in previous cases, but without reaching a ruling (see case of Kibbutz Malika v State of Israel 2000) In the case above HHJ Theodor Or stated that the question remains to be considered but “(...) in the judicial literature and obiter comments a trend is emerging whereby where a constitutional right is breached, legislative comfort might be given”.
However, this ruling is relevant to those whose constitutional right have been breached.Indeed, the deceased found her death in the incident which is the subject of this claim.
However, in this case the defendant did not breach the deceased’s right to life. The deceased put herself in a dangerous situation. She stood in front of a large bulldozer in a spot where the bulldozer’s driver could not have seen her. Even when she saw the dirt pile approaching her and endangering her she did not move away from the area unlike any reasonable person would do in the circumstances.
She began to climb the pile of dirt, fell over and finally found her death.The deceased’s death was caused due to an accident the deceased has brought upon herself. This was despite the attempts made by the IDF forces to remove her and her friends from the area.I consider that in these circumstances there is no justification to oblige the State to pay compensation for damages which the deceased could have prevented but preferred not to, and as such endangered her life in the way that she did.
Therefore, I dismiss the claim to order the State to pay compensation based on a constitutional wrong.
21. Conclusion On the basis of the above I reject this claim.
Due to the circumstances in which the deceased found her death I will avoid awarding costs against the claimants and instead order that each party will bear its own costs.
A summary of this judgment was read in public in the presence of the lawyers,Attorneys Hussein Abu-Hussein, Jamil Dakwar and Reem Masawara for the claimants, Attorneys Irit Kalman-Brom and Nir Gancharski for the defendant. A typed copy of the judgment was handed to the parties.
28 August 2012
Signature of Judge Oded Gershon
This unofficial translation is by Irène Solomon