A second condition added in the case law is that the dangerous thing is delivered or left to another (Criminal Appeal 74/62 Fishman v. Attorney General, IsrSC 17(3) 1478 (1963)). According to this condition, if the dangerous thing is not under the control of another, but rather under the control of its owner or supervisor, section 38 will not apply. This second condition is controversial, and opinions have already been expressed in case law and literature according to which there is no place for this condition, which does not arise from the language of the law and is based on historical circumstances that are no longer relevant (Civil Appeal 2303/11 State of Israel v. Lutfi Hassan Awawdeh, paragraph 5 of my opinion (June 24, 2014) (hereinafter: the Lutfi case); Guy Shani Presumptions of Negligence – Transferring the Burden of Evidence in Torts Law 252-253, 261-263 (2011) (hereinafter: second") (ibid., paragraph 6).
(See also: Civil Appeal 2303/11 Ministry of Defense v. Awawdeh (published in Nevo, June 24, 2014); Civil Appeal Authority 9113/05 State of Israel v. Abu Juma'a (published in Nevo, December 9, 2007)); Civil Appeal 7877/02 Ziad v. East Jerusalem Electric Company in Tax Appeal (published in Nevo, 28 December 2003)).
- In the Ziad case above, it was held that "...Proving the first two elements requires proof of damage caused by something defined as a "dangerous thing." These two elements require proof of a direct causal connection between the dangerous thing and the damage. The causal connection required here is between the object and the damage, as opposed to a causal connection between the person's negligent conduct and the damage."
- It appears from the aggregate that where the plaintiff met the burden of proof of all three of the aforementioned elements, as well as the additional conditions that she defined in the case law, the burden of proof shifts to the defendant to prove that there was no negligence regarding the 'dangerous thing' under his supervision for which he will be liable.
- This is an evidentiary rule whose application leads to the transfer of the burden of persuasion and in fact creates a presumption of negligence that can be contradicted. The section establishes three cumulative conditions , the fulfillment of which the rule will apply:
- The first condition requires the plaintiff's lack of knowledge and inability to know the circumstances of causing the damage.
- The second condition requires that the defendant have full control over the property that caused the damage.
- The third condition requires that the tortious event be consistent with the conclusion that the defendant was negligent more than with the conclusion that he took reasonable care, i.e., that the conclusion of negligence is the conclusion that is necessary in light of the known facts.
- The first condition deals with the plaintiff's point of view, the second focuses on the defendant's point of view, and the third refers to the court's point of view . The first condition requires the plaintiff's lack of knowledge or inability to know what were the circumstances that led to the damage. In the framework of the second condition, it is necessary to examine whether the defendant had full control over the property that caused the damage. The third condition mentioned in section 41 deals with "a case that caused damage". In this framework, the court is required to examine whether the tortious event is more consistent with the conclusion that the defendant was negligent than with the conclusion that he took reasonable care. The purpose of the condition is to ensure that the conclusion of negligence is requested in the initial test.
Examining the fulfillment of the third condition requires extreme caution because it examines the question of whether the degree of caution taken by the defendant is reasonable or whether it is negligence.