Therefore, I am persuaded that the plaintiffs in this matter are entitled to exemplary compensation, as will be detailed below, but at a lower threshold due to the circumstances detailed. All the more so, it emerges that there was no preliminary demand for the flight operator as required by law - the written requirement is a material requirement, although it does not negate the defendant's obligation to provide aviation services, taking into account that the purpose of the compensation is to warn, as will be clarified.
Sample compensation
- Section 11(a) of the Law grants the court the authority to award exemplary damages in an amount not exceeding ILS 11,120 (as of today, at that time, ILS 10,590) where it found that a flight operator knowingly did not provide benefits to a passenger whose flight was canceled in violation of the provisions of section 6 (see section 11(a)(1)(b) of the Law). When determining the amount of compensation, for example, the court will not take into account the amount of damage caused to the passenger as a result of the flight cancellation or the change in the time or conditions of departure, but will take into account, inter alia, the following considerations: (1) enforcement of the law and deterrence against its violation; (2) encouraging the passenger to exercise his rights; (3) that the violation is a repeat violation; (4) the severity and circumstances of the violation; (5) The monetary value of the transaction in connection with which the breach was committed. Section 11(c) of the Law further states that the provision of the section does not detract from a passenger's right to benefits due to that violation. A condition for punitive compensation is prior written contact with the flight operator. In this regard, I will note that even if there had been an earlier request and the defendant had replied that the receipts should have been forwarded to her and the passengers would have ignored and filed a claim directly (as could have been understood at first from the wording of the statement of claim) in such a way that the request was intended only for the purpose of legitimizing the filing of the claim since they did not respond to the response given by the defendant, and even if the plaintiffs did not agree because she did not agree to give monetary compensation or exemplary compensation (all the more so that it was sued according to the maximum threshold) and according to them they have a cause of action, Thus, they could have made the expense component of approximately ILS 47,000 redundant where the defendant would have been contacted, so that even where punitive compensation was awarded, the matter can constitute a consideration regarding the scope of the compensation. And to be precise; The expectation of procedural fairness is mutual. Thus, on the other hand, where an airline ignores a passenger's request upon his return to Israel prior to the filing of the claim, there is a consideration for charging compensation, for example, (see and compare: CA 45537-10-21 United Airlines Inc. Kagan (May 23, 2022)). In the Kagan case, the District Court ruled that where a failure to provide a real explanation as to why the airline did not respond to the plaintiff when he applied prior to filing a lawsuit, it would fall within the scope of considerations that should be taken into account in the framework of the obligation to pay compensation, for example, as well as fulfilling the purposes of the law, including encouraging the passenger to exercise his rights and effective deterrence. In the present case, the defendant did prove that not only did she not ignore, but proactively approached upon disembarking from the flight, and the plaintiffs were the ones who did not turn back, and those who did act accordingly and applied for reimbursement of expenses received unquestioned for the assistance services they provided, as well as compensation.
It has already been ruled that these damages will not be awarded in any case, except where it has been proven that the defendant conducted, inter alia, with significant negligence, contempt and disavowal or out of warning considerations and in view of the repetition of the same party (see CA 45532-11-19 Molcho v. Astra Airlines (March 16, 2023)).
- As stated, and as appears from section 11(a) of the Aviation Services Law, in order to obligate a flight operator to pay exemplary compensation without proof of damage, the burden is on the passengers (the respondents) to prove that the failure to provide monetary compensation, which is due under section 6(a)(b) of the Law, was done "knowingly". In other words, in contrast to the burden of proving that the exemption conditions are met, which is placed on the defendant, the burden is on the plaintiffs to prove the entitlement to compensation, for example (Kagan case above, referring toA. 1040-02-16 David Segal v. El Al Israel Airlines in Tax Appeal (September 9, 2021)). It seems that there should be no dispute that the significance of not granting benefits as granting a right to punitive compensation is where the benefits are not in dispute, for example, when the plaintiffs asked for or did not receive them in real time, and the plaintiff knows that it must grant them and does not give it to them - whether by refusal or by ignoring it to the point of exhaustion of the consumer. On the other hand, I am of the opinion that the fact that the defendant refused to pay statutory compensation does not, in my opinion, constitute a breach that entitles him to punitive damages, even if we are dealing with a benefit where the defendant even expressly refuses to grant it, where it is an honest dispute. Where the defendant is obligated to pay punitive damages because it did not provide statutory compensation within 45 days, it means automatic compensation to the passenger and the burden is on her to sue the court for the refund. As I ruled in the case of Shimron v. El Al - "A requirement that where the defense, for example, is weak with regard to the non-provision of statutory compensation, turns it into the 'court' and creates uncertainty that requires it to determine when there are chances of a claim or defense and when not for the purpose of statutory compensation knowingly that even in what it may be clear that it will not be obligated to do - it will be obligated, and vice versa, taking into account the language used by the legislature itself, which transfers to the court the power to cast content and interpret the circumstances whether they grant statutory compensation if No, did it do "as much as it could" or not, the quantity and evaluation depend on a judicial decision and each operator has a different standard in order to answer these questions. It is clear that if the operator believes that his defense is weak, he will pay, and if he believes that his defense is strong, he will not pay, but the difficulty is not in extreme cases" (ibid., at paragraph 20). Therefore, I held that the failure to provide statutory compensation does not constitute the non-provision of benefits for the purpose of applying punitive compensation. On the other hand, I determined that with regard to indemnification for the hotel, where the benefit is not given, punitive compensation should be applied. And to be precise; The application of punitive compensation in civil law is the exception of the exception, and it is not for nothing that both in the Consumer Protection Law and in the Aviation Services Law, the legislature has created a closed list.
- Let's go back to the benefits framework. Section 3(a) of the Law establishes the benefits under the Law: (1) Unpaid assistance services - (a) Food and beverages in accordance with the waiting time; (b) accommodation at a hotel if a stay of one or more nights is required or if a stay longer than the traveller's planned stay is required; (c) Transportation services between the airport and the hotel where the passenger is staying and if the passenger chooses to stay elsewhere at a reasonable distance from the airport, then transportation services between that place and the airport; (d) Two telephone calls as well as sending a message by facsimile or e-mail. (2) Reimbursement of consideration in the amount paid for the flight ticket, including any payment paid for the flight ticket, within 21 days from the date on which he contacted him in writing. (3) An alternative flight ticket to the passenger's final destination under conditions similar to the terms of the original flight ticket at the earliest possible date or at a later date in coordination with the passenger. (4) Statutory monetary compensation, which must be paid within 45 days from the date of the client's written contact. (5) Financial compensation due to a change in the conditions of this flight ticket within 21 days from the date of the written request.
Section 6 (a) of the Law, which deals with a flight that has been canceled from a gender, among all the benefits in section 3, the benefits to which the flight operator or the organizer is obligated - (1) Assistance services. (2) Refund of consideration or an alternative flight ticket of the passenger's choice. (3) Statutory monetary compensation. "While the first two benefits are absolute, with regard to statutory compensation, the operator or organizer can, in certain circumstances, where he does not have an exemption, pay half of the amount of the statutory compensation, and this compensation is not a benefit that the operator or organizer is obligated to provide in any situation where the flight is canceled, like the first two benefits, but rather a benefit that is subject to an exemption in accordance with a collective dispute (c) and (e). To teach you that it is not possible to apply the "knowingly" component of this section to them when they knowingly refuse to give an undisputed benefit. The very existence of a dispute that also exists in case law - the refusal of an operator or organizer is legitimate and worthy of examination and cannot be attributed to them knowingly since "knowingly" they refused not only on the date they refused, but they knowingly refused because they had to pay and did not pay. For if they believe that they have a defense that is protected by the law, then they are not obligated to pay, and any other interpretation will sin for the purpose of compensation, for example, if there are grounds for defense that entitles it to an exemption, what deterrence will be achieved here? On the contrary. A mechanism of "defensive aviation" will be created that will pay in any situation indiscriminately, even if it is not obligated and refrains from factual clarification of the case, or it will find itself frequently in the courts in restitution claims - which will ultimately harm the aviation market economically and may even be passed on to the consumer by the increase in the prices of services. This is not what the legislature intended" (Small Claim 30376-09-22 Shimron v. El Al, para. 22)).