(For further criticism of the doctrine of structured evidentiary damage, in the sense of "evidentiary negligence", which in practice transfers to the defendant the general burden of persuading that he was not negligent, see Israel Gilad Law of Torts - Limits of Liability 1316-1343 (2012)) (ibid., para . 30)
- In the Golan case above, it was held in the context of evidentiary damage, inter alia, that: "... Another doctrine used by case law to deal with situations of ambiguous causation is the transfer of the burden of persuasion in cases where there is evidentiary damage; e., in those cases in which there is an inherent difficulty in proving the existence of a specific causal link between the defendant's proven negligence and the plaintiff's direct damage (Civil Appeal 9328/02 Meir v. Laor, IsrSC 58(5) 54 (2004); Ariel Porat and Alex Stein, "The Evidentiary Damage Doctrine: The Justifications for its Adoption and Application in Typical Situations of Uncertainty in the Cause of Damages," Iyunei Mishpat 21(2) 191 (1998)) (ibid., Paragraph 36).
- Other Municipal Applications 361/00 D'Aher v. Captain Yoav, IsrSC 59(4) 310, it was held, inter alia, that: "...The evidentiary-procedural rule regarding evidentiary damage therefore means the establishment of a factual presumption that if they had not been damaged due to the defendant's negligence, the missing evidence would have supported the plaintiff's version regarding the factual claim that was repeated in dispute. Although this presumption is prima facie contradictory, it is natural – and similar to other presumptions that are exercised at the end of the trial – that it is needed only when it is known that there is no other relevant evidence, namely: that with regard to the factual claim that the missing evidence was required by the plaintiff to prove it, there is an "evidentiary tie" between the parties (ibid., para. 19).
- Other Municipality Applications 5373/02 Navon v. Clalit Health Fund (published in Nevo, 26 June 2003) held that:
In fact, the doctrine of evidentiary damage has implications only in a situation of "evidentiary tie", i.e., in a situation where evidentiary preference cannot be attributed to any of the parties, and the balance of information in the judge's possession is not positive. In such situations, the question of who bears the burden of proof will be of great significance, and the answer to this question will usually decide the dispute. This is how Porat and Stein explain in their article: