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A long awaited decision of Israel's Supreme Court (SC) on "proportional liability"(PL) was published today (29/8/10) (in Hebrew). A special panel of 9 Justices reconsidered its former 2005 decision (3 Justices), and by a slim majority of 5 to 4 overruled it.

 

 Unfortunately, although this new decision does clear one kind of uncertainty as to whether a "pure" rule of PL applies in Israeli law and to what extent, it raises another kind of  similar uncertainty.

 

The case (Malul): A child (P) was born with severe brain damage (PLV). It was more probable than not, that the damage was caused by her premature birth (for which no one was liable). Yet, it was also probable (20%) that the damage was caused by medical negligence (delay of a Caesarian Section).

 

The 2005 decision - The Malul rule. The SC ruled that the defendant hospital (D) is liable for a portion of P's  loss  which corresponds with the probability that the damage was caused by D's negligence. It accordingly ordered D to pay for 20% of P's damage.

 

Unanswered questions. Obviously, in this decision the SC embraced a "pure" rule of PL. The Malul  rule allows, in cases of causal uncertainty where it is more likely than not that D did not cause P's harm, to impose PL on D  according to the (less than 50%) probability that D caused the harm.

     But what are the limits of the Malul rule? Without limits such a rule threatens to transform private law from regime of liability based on causation to liability based on (materialized) risk creation. Does the rule apply to all medical negligence cases? To all tort cases? To all private law claims? And why not to public law and criminal law cases? The decision provided no real answers. The limits set by the court on the Malul rule were few, "open" and amorphous. One such limits required the causal uncertainty to be structural, "built-in"uncertainty without explaing what it means. The other limit was that PL is to be imposed only if justice so requires.

      Another unanswered question was whether the Malul  PL rule only benefits Ps (who get less than 50% rather than nothing) or also operates to their detriment (reducing their award below 100% when established  probability is between 100% and 51%).       

       These unanswered questions led to a decision to reconsider the Malul rule by an extended panel.

 

Today's decision.  While 4 Justices supported the Malul rule, the majority of 5 Justices overturned it, holding that hospital D is not liable to P for any part of P's damage. The major reason was the revolutionary nature of the Malul rule and its far-reaching implications.

  The majority was unconvinced by the minority attempt to "improve" the Malul rule by introducing more limits that would make it less "open" and less revolutionary (namely, to apply it only: (a) in bodily injury cases; (b)in tort cases; (c)for  the benefit of Ps but not to their detriment; (d) where the risk is significant; (e) mostly in cases of "scientific" uncertainty).

  

The "recurrent-bias rule".  3 of the 5 majority Justices did however endorse a new rule of PL characterized as "the recurrent-bias rule" ‎ ‎ ‎ )RBR‎ ‎ ‎ (. Under this rule PL should be allowed when D's activity/ies expose a group of Ps to risk, and that risk is systematically either below 50% or above 50%. An "all or nothing rule" in such circumstances, it was argued, leads to unjust and inefficient results (over or under-deterrence), while the "recurrent-bias" rule does much better. It was suggested that the RBR should be applied not just  for the benefit of Ps (when probability is systematically below 50%) but also to their detriment (when probability is systematically between 51% and 100%).    

    It was also argued that the "market share liability" cases (Sindell), and mass torts cases (like Agent Orange), are actually applications of the RBR rule.

 

New  uncertainties. The new RBR   was endorsed by only 3 Justices. 2 opposed it and 3 left it for future consideration. So while the Malul rule cloud of uncertainty dispersed, the RBR clouds are now gathering.  Does RBR apply? In which cases? In what ways?

 

Lost chances of Healing. Interestingly, the Justice proposing the RBR was in favor of abolishing the doctrine of "Lost chances of Healing". He argued that this doctrine is actually a rule of PL which does not fit into the new RBR. However, all the other Justices opposed it, leaving this decades-old doctrine intact.   

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Principles of European Tort Law. Both the Malul camp and the RBR camp relied on the adoption of PL by the Principles of European Tort Law (PETL, 2005), citing Sections 3:103 and   3:106.

 

 

Israel Gilead

Hebrew University of Jerusalem