Civil Appeal 4584/10 State of Israel v. Regev - part 87

So far, my conclusion as to the causal connection between the police failures and the prolongation of the respondent's detention has been based on the ordinary civil test of a balance of probabilities.  However, the conclusion can be established in another way – by using the tool of evidentiary damage, from the school of Prof. A.  Porat and Prof. A.  Stein (Tort Liability Under Uncertainty (Oxford, 2001)).  In my opinion, the police were negligent in not seizing the diary, the call outputs and the location in a timely manner, and the question is how this would have affected if these actions had been carried out on time.  It is difficult to give a clear answer to this, because we are dealing with a hypothetical scenario that did not materialize.  But the reason for this is that the police, by failing to carry out the aforementioned actions, caused evidentiary damage that prevents the fact-finder from knowing "what would have happened if he hadn't."  In other words, the police's failures have created evidentiary damage.  I am aware that in this case we are dealing with inherent evidentiary damage.  However, there is also built-in evidentiary damage – evidentiary damage.  This is what emerges from Prof. Porat and Stein's article, while defining the special nature of the structured evidentiary damage: "The doctrine of evidentiary damage may operate in cases where the wrongful conduct that caused the direct damage – or that which may cause it – merges with the behavior that caused the evidentiary damage" (Ariel Porat and Alex Stein "The Doctrine of Evidentiary Damage: The Justifications to adopt and apply it in typical situations of uncertainty in causing damages" Law Studies 21(2) 191, 195 (1998)).  Or in other words: "The burden of persuasion will shift to the defendant even when the evidentiary damage stems from that negligent act to which the direct damage is attributed" (Guy Shani Presumption of negligence 337 (2011)).  It should be noted that inherent evidentiary damage was also adopted by the ruling of this court in the case Meir (Civil Appeal 9328/02 Meir v. LaorIsrSC 58(5) 54 (2004); See also Civil Appeal Authority 2146/08 Bushwick v. Bnei Zion Medical Center (12.1.2011); See: Shani, pp. 337-343; and another ruling brought by the scholar Yisrael Gilad, although he has reservations about the approach: Israel Gilad Torts Law - Boundaries The Responsibility Volume in 1364-1367 (2012)).