Applying the doctrine to situations of "inherent evidentiary damage" is not simple. The ambiguity involved in such a situation stems from uncertainty about hypothetical scenarios that would fill a "factual vacuum," as opposed to damage to evidence in the "narrow sense" (Gilad, at p. 1363; Second - Evidentiary Damage, at p. 335; Second – Presumption of negligence, at p. 342). The application of the doctrine in circumstances such as this therefore requires caution and restraint, both in view of the weakening of the reasons underlying it (such as limiting the defendant's information advantage and deterring against the risks involved in evidentiary negligence), and because of the concern that the requirement of factual causal connection will be emptied of its content (Gilad, at pp. 1360, 1362-1363; And see the words of Monday, which indicates that the legal implications of the judgment in the Meir may be "far-reaching", to the point of "relinquishing the basis of the specific causal connection and settling for the existence of a potential causal connection" (Monday - The Evidentiary Damage, ibid.).
I have no choice but to agree to the review, and I too am of the opinion that one should guard against the mechanical application of the doctrine of evidentiary damage in a situation of "inherent evidentiary damage". As an example of how things may reach the point of waiving a causal-factual connection, I will refer to the conclusion reached by this court Other Municipality Requests 1068/05 Jerusalem Municipality v. Maimoni (Unpublished, December 14, 2006) (Hereinafter: Financing Interest). In that case, a claim for damages for damage caused to the victim in a riding accident on a farm under the jurisdiction of the Jerusalem Municipality was discussed. It was determined that since the farm was operated without a business license, the Jerusalem Municipality should be held responsible. This, despite the fact that the licensing of a riding farm business does not mean that the municipality must deal with regulating the rules of horse riding, so that the licensing would probably not have prevented the negligence that led to the riding accident (riding without a helmet on a horse "hot tempered" accompanied by an inexperienced instructor). President Barak overcomes the issue of causal connection through the doctrine of evidentiary damage: