And later on -
...Causing factual ambiguity by the defendant is a basic condition for the application of the evidentiary damage doctrine in its procedural aspect. In order for the plaintiff to be able to enjoy the fruits of this doctrine, the burden is on him to show that the fundamental condition included in its definition is met. It is illogical that the plaintiff could exempt himself from the need to present evidence regarding certain elements of his cause of action, based on a mere claim that factual ambiguity was caused in respect of them... (ibid., pp. 360d-e; para. 25).
- In the Abu Alash case above, it was held, inter alia:
The doctrine regarding evidentiary damage is based on the factual presumption that assumes that if they had not been damaged due to the defendant's negligence, the missing evidence would have supported the plaintiff's version of the issue in dispute (see Civil Appeal 361/00 D'Aher v. Captain Yoav (unpublished), para. 19 (hereinafter: the D'Aher case)). It should be emphasized that in order to apply this doctrine, the plaintiff must prove that there is guilt in the defendant's actions (see D'Aher's case, para. 21, and also see Additional Civil Hearing 1912/05 State of Israel v. D'Aher (unpublished), para. 7) (ibid., para. 9).
- The applicants did not prove to the court themselves or through the experts on their behalf and did not convince as required that they had reached an evidentiary-evidentiary impasse (somehow) "at fault" with the respondents. Nor was it proven by them what (if any) the 'missing evidence' was and what fault fell on the respondents' conduct in this context.
- Finally , there is no place in our case to transfer the burden of proof to the Respondents by virtue of any of the evidentiary rules on which the Applicants sought to rely.
Infringement of Autonomy - Halakha in the Nut Shell
- A person's right to autonomy was recognized for the first time in the judgment Other Municipality Applications 2781/93 Da'aka v. Carmel Hospital, Haifa, IsrSC 55(4) 526. There, in the opinion of the Honorable Justice T. Or, it was determined that every person has a fundamental right to autonomy, which is expressed in the right of a person to decide his actions and act according to his choices. The judgment also determined that an infringement of autonomy will constitute "damage" as defined in the Torts Ordinance and as such is compensable.
- The issue of the violation of autonomy from the consumer perspective was discussed in the judgment Civil Appeal 10085/08 Tnuva - Cooperative Center for the Marketing of Agricultural Produce in Israel in the Tax Appeal v. Rabi's Estate (published in Nevo, December 4, 2011). There, in the opinion of the Honorable Justice (as described at the time) A. Hayut, it was determined that the infringement of autonomy in that case was by way of misleading the consumer public when Tnuva concealed from the eyes of consumers the addition of the silicone component to the durable milk marketed by it. It was determined that the failure to disclose the essential detail is what constitutes a violation of autonomy, since the consumer public was deprived of the right to choose.
- Other Municipality Applications 887/19 Shmul v. Clalit Health Services (published in Nevo, November 21, 2022) held, inter alia, that:
With regard to the burden required for the purpose of proving the head of the damage of an infringement of autonomy – the starting point for our discussion is Other Municipality Applications 2781/93 Da'aka v. Haifa Carmel Hospital, 55(4) 526 (1999) (hereinafter: the Da'aka case) – where for the first time the head of damage of an infringement of the individual's autonomy was recognized as a separate head of damage, and its boundaries were delineated. However, from the date of the judgment in the Da'aka case until now, there have been legal developments that have sharpened and sharpened the boundaries of this head of damage. At the point in time at which the judgment that is the subject of the appeal was rendered, a clear precedent has already been established, according to which there are no adjudicators for compensation for damage that is expressed only in the very denial of the autonomy of the will, and it is necessary to prove subjective consequential damage.