Causal link between the damage and the construction defects
- The plaintiffs claim a construction defect according to which the floor of their apartment was built with a thickness of only 5 cm, and not according to the permit with a thickness of 20 cm. During the execution of the work, the defect was discovered and led to financial damages due to the cost of the work that the couple was forced to carry out after a dangerous building order was issued by the municipality's engineer for their apartment. The defendants, for their part, claim that according to the expert opinions they submitted, it is not possible that a floor with a thickness of 5 cm would last so long, and in fact, the damage was caused by the construction of a warehouse and a balcony in the property in question, the construction that was carried out without a permit and led to the weakening of the structure and the damage caused to the couple.
- It appears from the documents and testimonies of the parties that there are in fact no disputes as to the conclusion that the thickness of the floor in the plaintiffs' apartment according to the permit should have been 20 centimeters. The thickness of the floor and its condition at the time of discovery can also be learned from the opinion of the municipal engineer Polyakov dated January 30, 2014, which was attached to the statement of claim and marked as Appendix B.
- An engineer on behalf of the plaintiffs, Mr. Kravchik, testified that the construction of the warehouse carried out by the couple was not related to the area in which the damage was caused and that there was no causal connection between the construction and the weakening of the structure and the construction defect.
"Q: Now the warehouse that we have today under the balcony, in their apartment, do you know when it was built?
A: I don't know when it was built, but I don't think it's relevant at all to the area where the problem was, as far as I know.
Q: Isn't it adjacent to this area?
A: Yes, but what does it have to do with having a floor that's about as thick as it almost fell apart?" (p. 16, lines 28-32 of the transcript)
- On the other hand, the defendants were unable to prove, even to appeal, the conclusion of the engineer on behalf of the plaintiffs. Moreover, in the opinion of Mr. Benwalid , an engineer on behalf of the defendants, it can be clearly seen, according to the photographs attached, that the warehouse is located on the eastern side of the house, while in photo number 3 a picture of the kitchen of the apartment, which is located on the western side, on which it is written: "The area where the flooring sank", that is, even according to the opinion of the engineer on behalf of the defendants, it can be seen that the area of the warehouse built by the couple and the area in dispute in this lawsuit, They are two separate regions.
- With regard to the testimony of the engineer on behalf of the defendants, I did not see fit to give any real weight to his opinion, since, as stated during the testimony, he changed his conclusions regarding whether the floor in the plaintiffs' apartment was 'hanging' or 'lying', and we should be puzzled in this matter. I will note that the defendants' attempt to claim, inter alia, by the engineers on their behalf, that the space under the plaintiffs' floor was created by the plaintiffs for the purpose of being used as a housing unit, is a puzzling attempt that was unsuccessful. From the testimony of plaintiff No. 2 as well as from the documents of the municipal engineer it appears that all the work carried out in the basement was carried out by the plaintiffs after the discovery of the construction defect and in accordance with the instructions of the engineer on behalf of the municipality who asked the plaintiffs to line the walls of the basement as well as the pile that supported their floor. Plaintiff No. 2, who, as stated above, found full confidence in her testimony, stated that the engineer on behalf of the Municipality instructed them to carry out many works in the basement and other work, as a condition for their return to residence in the house, due to the risk created by the construction defect and the damage (see Appendix C to the plaintiff's affidavit).
Municipal engineer Polyakov was not brought to testify
- According to the defendants in their summaries, the fact that the plaintiffs did not bring the municipal engineer to testify works against them in the sense that he is an essential witness on their behalf and the fact that they did not bring him to testify works against them.
- This argument should be rejected and it should be determined that the opposite is true, and in my opinion, the defendants, insofar as they wanted to refute the determinations of the municipal engineer, should have summoned him to testify, and when they ceased to do so, it was their duty to do so. The plaintiffs attached to their statement of claim documents that appear to be official, issued by the engineer on behalf of the municipality after he visited the plaintiffs' apartment, determined that it was a dangerous building, and set out instructions and instructions for repairing the building. Insofar as the defendants wished to disagree with his opinion or determinations, they should have summoned him to testify, and as stated, since they did not do so, it is their duty to do so.
The area that was damaged in the plaintiffs' apartment
- According to the defendants, the area of the space under the plaintiffs' apartment was 40-41 meters in size, and therefore the repair to the floor of the plaintiffs' apartment was supposed to be of this size and not as emerged from the plaintiffs' expert opinion, Engineer Kravchik. In his testimony before Kravchik, in fact, confirms the following (p. 29, lines 22-35):
2.H. Haim Pas: Leave the floor for a moment, but the question is simple, the ceiling that had to be redone, the floor is actually the ceiling of the basement