Caselaw

Civil Appeal Authority 775/11 Avraham Flexer v. State of Israel – Israel Police - part 12

August 11, 2014
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  1. As to the circumstances of the case before us, the Attorney General argues that Adv. Gordon was the one who submitted the application for recognition of immunity and that the municipality supported the request. Therefore, the court should have examined the reasonableness of the municipality's administrative decision in this matter.  According to the Attorney General, the trial courts erred in examining the existence of the exception to immunity according to the statement of claim test, and according to him, this test undermines the rationale of the immunity arrangement for public servants.  On the face of it, the Attorney General adds, Adv. Gordon has set up a significant evidentiary basis that proves that in this case the exception to immunity is not met.  However, the Attorney General's position is that in view of the fact that the trial courts did not examine the request for recognition of immunity according to the tests of administrative law, the hearing should be returned to the Magistrate's Court in order to examine the application in this way.

Discussion and Decision

Amendment 10 to the Torts Ordinance

  1. On August 10, 2005, Amendment 10 to the Ordinance dealing with the liability of public servants in torts was published in the Official Gazette. The amendment came into effect six months after publication and significantly expanded the scope of immunity for public servants in torts.  The arguments of the parties in the proceedings before us reveal substantial disputes regarding the interpretation of the provisions of the amendment and the regulations enacted by virtue of it, both with regard to civil servants and with respect to employees of public authorities.  In order to address these disputes, it is therefore appropriate to present the provisions of the Ordinance and the relevant regulations in their entirety.

Section 7A(a) which was added to the Ordinance in Amendment 10 as follows:

No action shall be filed against a public servant for an act he committed while fulfilling his governmental function as a public servant, which establishes liability in torts; This provision shall not apply to such an act that was done knowingly with the intention of causing harm or with the possibility of causing it by such an act.

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