Civil Case (Jerusalem) 31455-07-19 Anonymous v. State of Israel - part 2

The tort of assault

34. Section 23 of the Torts Ordinance states that:

"Assault is the use of force of any kind, and intentionally, against the body of a person by hitting, touching, moving or in any other way, whether directly or indirectly, without the person's consent or consent obtained by fraud, as well as an attempt or threat, by an act or movement, to use such force against the body of a person when the attempter or threater causes the person to place, For reasonable reasons, he indeed had the intention and the ability to carry out his plot at that time."

35. The defendant pepper-sprayed the plaintiff, kicked him and beat him while he was handcuffed. These actions leave no doubt that the defendant has wronged the plaintiff and is liable to him for committing the tort of assault.

The tort of false arrest and the delay and demand for identification in violation of the law and in the absence of legal grounds

36. According to the plaintiff, the defendant's demand to identify himself on an ID card was contrary to the law and in the absence of legal grounds, and therefore his detention was a false arrest, based on a ruling issued years after the incident (High Court of Justice 4455/19 Tabka Association - Justice and Equality for Ethiopian Immigrants v. Israel Police , January 25, 2021).  The plaintiff also did not prove that he was not detained for interrogation, but was arrested and the duration of the detention.  Accordingly, the case law cannot be applied, and in any case it should not be applied in the circumstances of the lawsuit, because it discusses the authority of the police to ask a citizen to identify himself before it by means of an identity card in cases where there is no reasonable suspicion that the citizen has committed an offense.  In our case, moving on to the defendant's demand of the plaintiff, the plaintiff interfered with the defendant in the performance of his duties, the defendant had the authority to ask the plaintiff to identify himself, and the plaintiff's claim should be rejected.

Defamation

37. The plaintiff's claim that the defendant's curses during the argument in the parking lot constituted defamation were made in vain without detailing the statements. In light of this, and in light of the testimonies of the plaintiff's witnesses, some of whom heard only loud voices and the rest did not mention the content of the statements made during the argument, the argument is rejected.
38. Therefore, of all the torts that the plaintiff attributed to the defendant, he is only responsible for the tort of assault.

The State's Responsibility for the Defendant's Actions

39. According to the plaintiff, the state bears direct and vicarious responsibility for the defendant's actions. The state, on the other hand, argued that the defendant was solely responsible for the fact that his actions were carried out in complete deviation from his duties.

1. Section 13 of the Torts Ordinance states that an employer is liable for the act of his employee, when it was done in the course of his work, even if it was performed improperly, during the performance of the employee's regular duties for the purpose and affairs of the employer.  The determination of whether the employee's actions were committed within the framework of his position will be made using the employee's "dominant purpose" tests at the time of the commission of the tort, criminal conviction and its nature, and legal policy considerations (Civil Appeal 8027/14 Shorosh v.  Shalian, dated November 29, 2015, hereinafter, "the Shorosh Rule").

41. The basis of the "governing purpose" test is the assumption that at the time of the tort, the defendant acted both to fulfill his role and to satisfy his personal interest. The state, as the defendant's employer, will bear vicarious liability for the defendant's actions, only when it is apparent that the dominant goal that the defendant had in mind at the time of the act was related to the performance of his role (Civil Appeal 338/60 State of Israel v.  Madar, IsrSC 15 1569).  According to the state, the defendant acted exclusively to protect his sister's honor when he attacked the plaintiff.
42. The defendant's main purpose in the police force in his role as a Border Police officer was to maintain law and order. The tour on the day of the event that they brought to the parking lot was part of this purpose and during his work.  The plaintiff confronted the defendant twice during the tour of the parking lot, and after the second call, asked the plaintiff to identify himself, who refused and cursed the defendant's sister.  The defendant in response attacked the plaintiff.  According to the state, in attacking the plaintiff, the defendant completely deviated from the performance of his duties and acted solely for his own interests, the honor of his sister.  The manifestations of violence against the plaintiff are spread out in three arenas, the parking lot, the patrol car and the police station, for the reason that throughout the incident the defendant acted to detain the plaintiff and bring him to the police station for interrogation.  These actions are part of the main purpose of the defendant's work to maintain order and should be regarded as improper performance of his work, as inferred in the criminal proceeding.
43. A criminal conviction is another sign of the state's vicarious liability, but it is not necessary (Shorosh ruling, para. 16).  The mere criminal conviction is not an indication in itself, and the nature and nature of the conviction, and even the severity of the offense of which the employee was convicted, must not be examined.  The defendant was convicted of the offense of assault causing actual injury committed in the course of his duties (Criminal Procedure, paragraph 16).  The determination of the criminal judgment, that the offense was committed in the framework of his position, is also an indication in the present proceeding that he did not deviate from his position.
44. In terms of judicial policy considerations, too, the state's argument that prosecuting and convicting the defendant exempts it from responsibility for his actions should be rejected. According to her, the prosecution constitutes the state's disavowal of his actions, and his conviction indicates that he acted outside the framework of his position.  As noted, a criminal conviction is not a sign of deviation from office.  While the filing of an indictment expresses a retrospective denunciation of the defendant's conduct in the eyes of the state, it does not exempt it from its responsibility to prevent the wrongdoing from happening in advance.
45. The state did not bother to present evidence or bring witnesses on its behalf as to the defendant's character, who claimed that he had received certificates of excellence several times. The state also did not present evidence of the plaintiff's content and training, the frequency of the training sessions, and the nature of the briefing that was given to the defendant prior to the tour.  Yes, it did not install a camera at the police station to document what was happening there, nor procedures that would separate a police officer from an arrester in the event of an assault.  As a result, the plaintiff was exposed to the defendant from the parking lot to the police station, when no action was taken to separate the hawks and calm the situation.  However, the plaintiff's argument that the theft of a cell phone by the defendant, which he admitted in addition to the plea bargain, was supposed to serve as a warning to the state of the defendant's character, that according to the judgment, the theft was committed about nine days after the event that is the subject of the lawsuit, and therefore does not relate to our case.
46. In light of the aforesaid, the plaintiff's arguments are accepted that the state is directly and indirectly responsible for the defendant's actions by virtue of vicarious and direct liability.

Contributory Fault and the Division of Responsibility

47. "The victim's provocation may not be sufficient to anchor a claim that a reasonable person would have lost control in similar circumstances, but will amount to carelessness that justifies the determination of contributory fault (Criminal Appeal 6167/99 Yaakov Ben Shlosh v. State of Israel, IsrSC 57 (6) 577).  Quitting is a result of the proportionality of the response in the eyes of a reasonable person.  The contributory fault is a result of the "degree of guilt" (Civil Appeal 267/58 Lekritz v.  Shafir, IsrSC 13 1250), that is, the court places the negligent acts of the tortfeasor and the injured party against each other, in order to compare and evaluate, in terms of moral fault, the extent and weight of the actions and omissions of each party.  ....  The level of contributory guilt must correspond to the degree of moral guilt that arises from the examination of the conduct of the parties concerned (Civil Appeal 316/75 Shor v.  State of Israel, IsrSC 31(1) 299)" (Cell (District Court) 2555/00 Raviv Margalit v.  State of Israel, of September 20, 2004).
48. In the circumstances described above, and taking into account the case law (Cell (Maritime District) 2031/08 Atlan Yoni Robert Samuel v. Shraga Rosenberg, dated October 15, 2009), the defendant's guilt should be reduced to a small extent and the plaintiff's contributory degree of guilt should be determined, given that even though he confronted the defendant, after drinking alcohol, refused to identify himself and cursed his sister, as determined in the criminal judgment, the defendant's reaction afterwards continued until the end of the incident.  for physical violence that is disproportionate, and therefore his liability should not be reduced decisively, and therefore the plaintiff should be found guilty of contributory fault at the rate of 20%.
49. The division of liability between wrongdoers jointly must be conducted according to the moral fault test (section 84 of the Torts Ordinance; Civil Appeal 8199/01 Estate of the late Ofer Miro v. Yoav Miro, IsrSC 57(2) 785).  The state did not present evidence that it acted to prevent the attack, such as procedures, training, and briefings that would have given the defendant the instructions and tools required to carry out his duties, and therefore will bear most of the responsibility, in light of its direct and vicarious responsibility and because it caused the defendant evidentiary damage to prove his version as detailed.

The Issue of Damage

50. According to the plaintiff, he should be compensated in the sum of ILS 150,000 for mental anguish, idle time, loss of work days, and pain and suffering. These damages were generally claimed in the plaintiff's summaries, without detail.
51. The plaintiff contradicted himself in his testimony regarding his damages. The plaintiff testified that he was forced to go on vacation several times as a result of the incident.  This claim was not supported by attendance reports, even though the plaintiff testified that he was obligated to fill out, which were not submitted as evidence (paras.  14-19 at p.  10 of the transcript of May 25, 2022).  Yes, his salary was not affected after the incident, although he claimed that he was absent from work.  His alleged absence from work contradicted his explanation of the reason for which he did not prove mental disability, from which he claimed he suffered as a result of the incident.  Initially, the plaintiff was asked in his testimony why he stopped his mental health treatment after two treatments, and testified that time constraints did not allow him to make time for treatment (paras.  1-2 at p.  9 of the minutes of May 25, 2022), contradicting his claim of multiple absences from work after the incident (paras.  10-14 at p.  9 of the minutes of May 25, 2022).
52. The plaintiff did not submit a doctor's certificate or medical opinion to prove an alleged permanent or temporary mental disability as a result of the assault, and in their absence he was prevented from claiming them. Despite this, the plaintiff claimed that the incident left him afraid of those in uniform and refrained from being around them, contrary to his testimony, that he passes through the checkpoint on a daily basis (Q.  25-27, 30-31 on p.  6 of the transcript of May 25, 2022).  The medical documentation that was submitted allegedly shows bruises, but their nature and medical significance have not been proven, since they were not submitted by admissible evidence.
53. The cancellation of the time due to a number of times he was interrogated by the Department for the Investigation of Police was also not proven. The plaintiff did not prove a loss of wages in his pay slips, and taking into account that, according to his testimony, he included two meetings that lasted no more than 40 minutes each (paras.  10-13 on p.  10 of the minutes of May 25, 2022).  The plaintiff focuses in his summaries on the head of the damage of pain and suffering, which will be determined according to an estimate and from which his contributory fault will be deducted.  The incident began in defiance of curses on behalf of the plaintiff.  The plaintiff confronted the defendant twice, and at the defendant's request, his identity card and his behavior was what led to the need to identify him.  The plaintiff did not cooperate at the beginning of the incident and his curses are the basis for contributory guilt at a rate of 20%.
54. In light of the aforesaid, the plaintiff should be awarded the sum of ILS 30,000 for non-pecuniary damage due to the occurrence. The compensation mainly reflects the pain that was inflicted on the plaintiff shortly after the incident and the mental anguish.  The amount includes linkage differences and interest until the date of the judgment.

Punitive Damages

55. Punitive damages are not awarded as a matter of routine, except in cases where the tortfeasor's conduct was particularly outrageous and repugnant, and especially in cases where there is a kind of intention (Civil Appeal 9656/03 Estate of the late Marciano v.   Singer of April 11, 2005; Civil Appeal 8382/04 Histadrut Medicinit Hadassah et al.  v.  Mizrahi of February 2, 2006).  Such conduct was not proven in our case, because the plaintiff did not prove that the defendant attacked him with the intention of harming his body, until after she provoked him.
56. The circumstances of this case are serious and should not be taken lightly, however, there is no room for awarding punitive damages (Cell (District) 2031/08 Atlan Yoni Robert Samuel v. Shraga Rosenberg, dated October 15, 2009).  This is in light of the case law that states that punitive damages will be awarded only in exceptional cases, and in the event that a sentence is imposed in a criminal proceeding, it will be the exception of the exceptions, in which for some reason it was not possible to impose a sufficient criminal punishment.  It was further held that, as a rule, when a criminal proceeding is conducted, the deterrent and punitive purposes are achieved in the criminal proceeding and have no real place in the civil proceeding (Civil Appeal Authority 2690/07 Anonymous v.  Anonymous, dated June 22, 2009).

Conclusion

57. Therefore, the state will pay the plaintiff ILS 21,500 (after deducting 20% contributory fault from the compensation and deducting the amount paid by the defendant in the criminal proceeding, which is the defendant's share of the compensation) together with attorney's fees at the rate of 23.4% and legal expenses. The amount will be paid within 30 days from the date of the judgment, otherwise it will bear linkage differences and interest in accordance with the law from today until the actual date of payment.

The Secretariat will send the judgment to the parties' attorney.