On the other hand, they argue - and their arguments are also supported by the state, the Attorney General and the municipality - that neither the test of the statement of claim nor the preliminary clarification test proposed by Flexer and Shai should be accepted. According to their approach, the court's decision on the issue of immunity should be classified in the category of judicial review of an administrative decision made by the competent authorities in the state (in the case of civil servants) and by the competent authorities in the public authority (in the case of employees of public authorities), and the rules of administrative law should be applied in this regard.
As in any interpretive process, we are obligated in this case as well to examine the purpose that was at the basis of the immunity granted to public servants in Amendment 10 to the Ordinance, as it is the basis for the said interpretive process, and to this we will turn now.
Liability of Public Employees in Torts Prior to the Enactment of Amendment 10 to the Ordinance
- The concept that has been prevalent in common law for centuries has been - "The King can do no wrong", in other words: State authorities are immune from tort claims (William Blackstone, Commentaries on the Laws of England 242-245 (1753); See also: Edwin M. Borchard, Government Liability in Tort, 34 Yale L. J. 1, 1-8 (1924) (Hereinafter: Borchard); Gibbons v. United States, 75 U.S. 269 (1868); United States v. Lee, 106 U.S. 196 (1882); Israel Gilad: "Liability in torts of authorities Public and Public Servants (Part 1)" Law & Government B 339, 360 (1995) (hereinafter: Gilad, Part 1)). However, even though the injured party was not entitled to sue the state for damages caused to him by one of its employees, in many cases he had at his disposal a cause of action for damages against the public servant personally (Israel Gilad: "Liability in torts of authorities Public and Public Servants (Part Two)" Law & Government C 55, 89-90 (1995) (hereinafter: Gilad Part Two); Borchard, at pp. 7-9; Robertson v. Sichel, 127 U.S. 507 (1888)).
This approach permeated Israeli law and found expression In section 4 to the Civil Torts Ordinance, 1944, Appealing a Registrar's Decision Tosfot 1, 93, which stipulated, on the one hand, that "no lawsuit shall be brought for civil damages against His Majesty or the Government of Palestine," and on the other hand, that "His Majesty's servant and a public official shall be liable for any civil damages he may commit," subject to a number of exceptions. With slight wording changes, he continued Section 7(a) The command expresses the same perception. This section, which was in force until the enactment of Amendment 10 to the Ordinance, stipulated that: