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 Tort / Administrative Law Client Update 

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February 23 2017

'Tort Hybrid' – When can Liability be Imposed on the State for Negligence where the Source is a Violation of an Administrative Norm?

The MK, Yehuda Glick, filed a claim in tort against the Israel Police a few days after the police prevented him from going up the Temple Mount, claiming that by doing so the Police damaged his livelihood (at the time he was a guide to visitors to the Temple Mount).  The Magistrates' Court in Jerusalem decided in his favor and awarded compensation in the amount of NIS 500,000, after finding that the prohibition had been in force for some 2 years.   The State filed an appeal with the District Court, and the latter set aside the decision.  

The District Court found that Glick was entitled – at most – to compensation of some NIS 85, 000 but even that he would not receive since he had not filed a petition against the decision of the Police and so had - in effect – got around the petition procedure.  In addition he had done nothing to mitigate his alleged damage.  Glick MK filed a request for leave to appeal and the matter came before the Supreme Court.

The Supreme Court requested the request for leave to appeal, which had been filed by Glick but given the differences of opinion between the Justices, no precedent was handed down on the principle.   The discussion which was conducted between the members of the Bench (their Honorable Justices Rubinstein, Amit and Zilbertal) was fascinating.

The legal question which was before the Court was whether, before filing the claim in tort against the authority for 'administrative negligence',  an administrative petition should have been filed with the Supreme Court (sitting as a Court of High Justice) directly attacking the decision. The decision also considers additional questions concerning the liability of the State in tort further to a breach of an administrative duty.

His Honor Justice Amit rejected Glick's request for leave to appeal in a judgment accepted by the majority (ie together with His Honor Justice Zilbertal).  In a long and detailed judgment, His Honor Justice Amit explains how, in his opinion, administrative decisions should be attacked.  He called these types of lawsuits 'hybrid torts' – negligence claims for breach of an administrative law norm.  Justice Amit also mentioned that, as a rule, such claims should be treated with suspicion, and given narrow recognition, and thereby disapproved of that which had been determined by the Supreme Court in the Avenal case.  He also found that the correct way of attacking an administrative decision is directly by means of a petition against it and not indirectly by means of a tort claim against the results of such a decision.

His Honor Justice Amit mentions in his judgment, while quoting from other instances, that there is no 'mathematical equality' between the statutory authority and the duty of care in negligence, and that the term 'not in accordance with the law' in administrative law does not necessarily equate to negligence for the purposes of tort law.  Rather it is a general term on which should be cast all the concepts of administrative law: unreasonableness, lack of proportionality, breach of natural justice, discrimination, arbitrariness, derogation from scope of authority, etc.

Namely, according to Justice Amit, a breach of an administrative norm is not sufficient in and of itself in order to impose tortious liability on the authority rather the breach of the norm needs to be severe.  It is also necessary to examine the factual causation   as well as the type of damage alleged, the policies underlying administrative law and tort law including the immunities and defenses in tort and contributory negligence and volunti non fit injuria.

By contrast the minority judgment of the Vice President of the Supreme Court – His Honor Justice Rubinstein – explained that the request for leave to appeal should be accepted in part.   While he went into a broad analysis of the interface between tort law and administrative law, he found that a direct attack on an administrative decision does not block the way of making an indirect attack by means of filing a claim in tort for compensation.   He also found that, as a general rule, it is sufficient if a prior approach is made to the authority in order that the latter would have another chance to 'change its ways', there is no obligation to approach the Supreme Court sitting as a High Court or the Court for Administrative Matters first before a claim in tort is heard.  So, after the authority has given its response to such prior approach it is possible to file the claim in tort.

His Honor Justice Rubinstein also mentioned that the opinion of His Honor Justice Amit requires a change to the basic principles relating to State liability in negligence in general so as, in effect, to deviate from the precedents on this matter and also so as to change the starting point that 'For the purpose of civil liability, the State shall, …be regarded as a corporate body' (Section 2 of the Civil Wrongs (Liability of the State) Law, 5712-1952).

His Honor Justice Zilbertal joined the position taken by Amit in principle for all matters concerning attacks against administrative decisions, and found that a tort claim cannot be filed instead of an administrative petition.   Nevertheless, he also commented – as a side note – that it is important to recognize that there might situations where it is appropriate to attack also by means of a civil claim where the acts of the authority constitute a civil tort.  This is because the fear of the financial outcome accompanying the 'recognition' of the irregularity of the administration may create an effective deterrent and encourage proper administration, alongside the payment of adequate compensation to the victim.

References:
Civil Wrongs (Liability of the State) Law, 57121952; CA 1081/00 Avnal Distribution Company Ltd v the State of Israel, PD 59 (5) 193 (2005); RLA 2063/16 The Rav Yehuda Glick v the Israel Police, handed down on 19.1.17
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:

Roi
Adv. Elad Levi
tel: 972-3-6235013
mail: elevi@nblaw.com
amor
Adv. Amit Mor
tel: 972-3-6235160
mail:
amor@nblaw.com
Written by Adv. Elad Levi
Edited by Dr. Sharon Yadin, Adv.
English version by Adv. Helen Raziel