"In this regard, I examined the municipality's argument that the conditions required for a business license do not include the safety rules relating to horseback riding, and therefore no factual causal connection should be identified between the breach of the licensing obligation and the damage. However, the negligence of the municipality deprived the respondent of the evidentiary basis that he needed as to the hypothetical state of affairs if the municipality had acted properly. In these circumstances, we have held in the past that the burden of proof arose on the authority to show that even if it had lawfully fulfilled its duties, it would not have benefited the injured party (see The Anonymous Case, para. 34; Civil Appeal 9328/02 Meir v. Dr. Dan Laor (not yet published)). The authority did not meet this burden, and hence the element of the required causal connection between the negligence and the damage existed" (ibid., paragraph 25 of the judgment).
In my opinion, we have before us an example of how the doctrine of evidentiary damage brings about practice To determine, and at least to greatly weaken, the causal connection element in the tort of negligence.
And from another angle: in Idna, you have almost no criminal file in which there is no allegation of investigative failures in the trial court and the appellate court, and it can be said that there is almost no police investigation that cannot be expanded to additional actions. Sometimes, and perhaps even often, it is indeed possible to point out various investigative failures by the police. Despite this, the ruling reiterated time and time again that the test is done according to the evidentiary "is" and not according to what could have been done. Thus, for example, it was stated by Justice Rubinstein inCriminal Appeal 5386/05 Bilal Alhorti v. State of Israel In paragraph 7 (unpublished, May 18, 2006) (hereinafter: The Alhorti Matter):
"From the aforesaid, it emerges that the failures of the investigation must usually be measured on the evidentiary level (Mellicker, ibid.). The case law further held that the prosecution is not obligated to present to the court the 'maximum evidence', but rather 'the prosecution must prove what it is charged with with 'sufficient evidence', 'and it does not matter if it was able to obtain a favor from it' (the Melker case, and see the references to Shem), and even if the prosecution could have obtained better evidence, this does not lead to the acquittal of the accused, if the evidence presented is sufficient for a conviction beyond a reasonable doubt. This is how he summed up the issue in the בית המשפטMellicker case: 'The failure of the investigative body to gather evidence – and even if this was done consciously – does not replace the evidence that could and would have been obtained; and its power is limited in this context, to the absence of supporting or contradictory evidence of other evidence, on which a litigant relies his claims.'"