'A dangerous thing'
- Section 38 of the Torts Ordinance establishes four conditions, the fulfillment of which will shift the burden of proof to the defendant:
the existence of damage; causing the damage; by "something dangerous"; The defendant is the owner/custodian/occupier of the damaged property.
- 563. By virtue of the ruling, two additional conditions were added for the purpose of transferring the burden of proof. The first, because the use of the dangerous thing is not the usual use. The second, That the dangerous thing is handed over or left to another.
- Other Municipality Applications 9073/15 Anonymous v. Clal Insurance Company (published in Nevo, September 4, 2017) it was held, inter alia, that:
The wording of the section raises three conditions, which are four, and only when joined together will the evidence be against the defendant: the existence of damage, the cause of the damage by "something dangerous" (or by an alternative that is not relevant to our case – something that is liable to cause damage in his escape), and the fact that the defendant is the owner, custodian or occupier of the damaged property. The middle condition entails two conditions – the fact that the thing is "dangerous", and a causal connection between the dangerous thing and the damage caused. Scholars Menashe, Gruner and Binyamini are of the opinion in their articles that these conditions were proven by the appellant, while respondents 3-4 – the contracting company and its insurer – disagree with this.
In addition to the conditions explicitly set forth in the law itself, the case law added two more conditions for the application of section 38. One condition is that the use of the dangerous thing was not its usual use. In the words of the case law, "the applicability of section 38 may be negated, where the use of a dangerous object is based on 'dangerous' circumstances, to which the object is intended, by its very nature, to provide a response, and the dangerous circumstances forced the defendant to use the dangerous object" (Civil Appeal 1071/96 El-Abed v. State of Israel, paragraph 16 of the judgment of Justice E. Rivlin (February 6, 2006) (hereinafter: the Al-Abed case)). For example, and according to the examples cited there, a policeman shooting a gun during an exchange of fire with a criminal, or using a powerful hose when trying to extinguish a dangerous fire – is not considered a "dangerous thing." The rationale for the exception, as presented in the El-Abed case with reference to American law and the Third State of Torts, is this: The purpose of section 38 is to create a prima facie conclusion of negligence against someone who chooses to use a dangerous object, which requires proper and strict precautions. This purpose follows that when, for example, a police officer or soldier uses a weapon in an activity that requires the use of a weapon (in the language of the statement – common usage), there is no desire to change the usual rules, and not even to raise the standard of responsibility. In such situations, the usual precautionary rules are the appropriate ones to guide the user in the property. The situation is different when a party uses a dangerous object contrary to its natural use and not within the circumstances in which the object was intended (Al-Abed, pp. 354-356; and see also restatement (Third), Torts §20).