(See also: Civil Appeal 3114/12 Sasson v. Ministry of Welfare (published in Nevo, April 13, 2014)); Civil Appeal 1693/09 Estate of Anonymous v. Assaf Harofeh Hospital (published in Nevo, September 3, 2014); Amos Herman, 'Law of Torts' (2020), pp. 139-146).
- In the Sasson case above, the court noted, inter alia, that:
The doctrine of evidentiary damage has been criticized (Guy Shani, "The Evidentiary Damage and its 'Punishment': In Praise of the Transition from the Existing Model of Shifting the Burden to Models of Proportionality and Indications" Mishpatim 415, 335 (2011); Guy Shani, "The Presumption of Negligence: Shifting the Burden of Proof in Tort Law 342 (2011) (hereinafter: Shani – Presumption of Negligence"); Judgment on Other Municipal Applications 4584/10 State of Israel v. Shubar, para. 113D (December 4, 2012)).
Several reasons can be pointed out for criticism of this doctrine. First, one of the goals of tort law is deterrence. In the case of classic evidentiary damage, such as non-registration or failure to keep a medical record, the justification for transferring the burden is to incentivize the defendant to create evidence or to preserve evidence that can dispel the fog about the cause of the damage. But when the evidentiary damage merges with the negligent act itself, the assumption is that in any case a deterrent against the negligent act has already been put in place, a deterrent that has not yet proven itself, otherwise a negligent act would not have been performed. Second, the doctrine of inherent evidentiary damage leads in practice to the deterioration, and unfortunately to the great weakening, of the causal connection element in the tort of negligence and breach of statutory duty. The mere proof of negligence or breach of statutory duty is equivalent to proving a causal connection, since a potential causal connection is sufficient to transfer the burden. Thirdly, and further to the above, the transfer of the burden of persuasion is identified, in practice, to accept the claim [...] This was noted by Justice (as he was then called) Grunis Other Municipality Applications 8279/02 Golan v. Estate of Albert in paragraph 16 of his judgment (December 14, 2006) [....]