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Tort Law Client Update 

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September 14 2017
It is with great sadness that we said a final goodbye this week to Adv. Peter Gad Naschitz, Z"L, founder of our firm.  Adv. Naschitz laid the foundations for insurance and tort laws in Israel and was one of the leading experts in these fields worldwide as well as being one of the leading litigators in Israel.  Adv. Naschitz championed developments in the law in these fields both in Israel and worldwide, including within the framework of his position as President of AIDA.  He was a party to multitudinous judicial and legislative precedents not only in these fields but also in others.  May his memory be forever blessed.
Gad_Naschitz

The Supreme Court Decides: Until which age will Children Be Regarded as Dependent On Their Parents?

Over the years, and in connection with various social and cultural changes, there has been  a trend towards extending the age of dependence of children on their parents.   Thus, in what has become known as the generation Y, the economic support of parents is accepted while their children follow academic studies and it is becoming more frequent for this support to continue even for older children as they move into professional life and even when they establish their own families.

We can assume that this trend gave rise to the wide ranging discussion as well as the decision which was handed down recently (in June 2017) by the Supreme Court in the matter of John Doe.   This was a decision on an appeal from a decision of the Haifa District Court which had rejected the claims of two children of the deceased – his daughter aged 38, a psychologist by profession married with 3 children and his son aged 30, an engineer by profession, married with 2 children.  The District Court had decided that they are entitled to compensation as dependents of the deceased in light of the economic support which the deceased had provided to them and which they claimed would had continued had the accident which took his life not occurred.
 
The appeal placed at the doorstep of the Supreme Court a question which had not yet been decided upon:  whether older children, who are able to earn an independent living, even if only theoretically, can be considered as 'dependents' of a person who has passed away for the purposes of filing a claim under Section 78 of the Tort Ordinance.  This Section addresses the rights of dependents to compensation.   This Section provides:  'Where the death of any person is caused by any civil wrong and such person would, if death had not ensued, have been entitled at the time of his death under the provisions of this Ordinance to compensation in respect of bodily injury caused to him by such civil wrong, the spouse, parent and child of such deceased person will be entitled to compensation from the person responsible for such civil wrong.'

In order to be able to give an answer to this question His Honor Mr. Justice Amit conducted a wide examination into the judicial approach to the question as to the scope of  'dependents' and the entitlement to compensation, which approach distinguishes between three approaches:  first is the narrow approach, according to which a 'dependent' is someone who lacks the ability to earn a living for himself independently and his entire existence is dependent on the deceased parent; second there is the broader approach according to which any support of a parent for his children,  which fell away at the time of his passing away, establishes a basis for a claim of a 'dependent'; third is the intermediate approach according to which the term 'dependent' is wide enough to include also a child who – theoretically - has the ability to earn  a living for himself independently, but who relies on his parents and they provide him with everything he needs in his life.

According to His Honor Mr. Justice Amit, it is necessary to adopt the middle route and to recognize a child as 'dependent' only in cases in which it is possible to determine that he is really dependent on his parents.  Namely, those cases where the child relies on his parents de facto and is lacking the ability to earn a living as an adult,  but also subject to certain exceptions.  It was decided that at the top of the relevant factors to take into account for examining the dependence of a child it is necessary to consider his age: a child until the age of 18 will be considered entirely dependent on his parents, during the period of army service the dependence is decreased and afterwards a child will no longer be regarded as dependent on his parents.  Having said that, in appropriate but exceptional circumstances it is possible to award compensation for the loss of support to a child during his academic studies and even thereafter - such as in cases of absence of earning capacity, absence of a profession or lack of an independent family unit – such that it can be decided that the adult is a dependent notwithstanding having gone past the age of 18 or even older.

His Honor Mr. Justice Amit accepted the middle route as the correct approach, stating:  a child who is an adult who has acquired a profession and established his own family unit, namely he is in fact independent and even by force, will not be regarded as dependent on his parents even if he receives regular financial support from them and even if it is hard for him to 'finish the month' without their support. The choice of this approach, which does not recognize every child as entitled to be regarded as 'dependent' and so entitled to compensation for the loss of the support from his parents, was made taking into account policy consideration which cannot overly broaden the boundaries of claims of dependents.

His Honor Mr. Justice Solberg joined the judgment of Mr. Justice Amit but drafted the test somewhat differently.  In his approach it is possible to enable children who are adults to be caught under the umbrella of the definition of dependents if it can be proven that their earnings - whether in whole or the principal thereof – are supplied by their parent.  His Honor Mr. Justice Danizger also agreed to the conclusions of Mr. Justice Amit and explained that this instance involves a clear case in which there is no room to regard the children of the deceased as dependents.
Since the appellants in this case were adults, working professionals earning a living and even had established their own family units, it was decided that they were not dependents of the deceased for the purposes of Section 78 of the Tort Ordinance and their appeal was dismissed.

Reference: C"A 8961/16 John Doe v The Israeli Database for Compulsory Insurance (published in Nevo 14.6.2017)
Disclaimer: This Newsletter is intended only to provide general updates to clients and for no other purpose. Nothing in this Newsletter constitutes any opinion or advice on the subject matter dealt with therein. For any advice or opinion, clients are advised to approach the relevant lawyer at Naschitz, Brandes Amir & Co.

Contact Us:

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Adv. Shay Cohen
tel: 972-3-623-5052
email: scohen@nblaw.com
Gil Atar
Adv. Gil Atar
tel: 972-3-623-5044
email: gatar@nblaw.com
Written by Adv. Gil Atar
Edited by Dr. Sharon Yadin, Adv.
English version by Adv. Helen Raziel