Immunity of Public Employees in Amendment 10 to the Ordinance
- The fundamental change in the customary legal regime as far as the personal liability of public servants is concerned occurred only with the enactment of Amendment 10 to the Ordinance in 2005. According to Section 7A(a) added to the Ordinance under this amendment, no action will be filed against a public servant for
a tort that he committed in the course of the performance of his governmental position, unless he acted "knowingly with the intention of causing damage or with the intention of causing it". With the entry into force of the amendment, the plaintiff was therefore deprived of the right to choose whether to sue the authority or the employee, or both, for a tort committed against him by a public servant in the course of the performance of his duties, and the amendment and the regulations enacted by virtue thereof established a detailed track that only when the conditions and criteria set forth therein are met will it be possible to remain intact and conduct a tort claim against him The public servant. Certainly: The immunity granted to a public servant under section 7a(a) of the Ordinance is procedural immunity , and this means that the public servant is not substantially exempt from tort liability, but that he cannot be sued for this liability (see explanatory notes to section 7A of the bill to amend the Torts Ordinance (No. 10) (Liability of Public Employees), 5763-2002, H.H. 134, 136 (hereinafter: the bill); Minutes of Session No. 270 of the Law, Law and Justice Committee, 16th Knesset, 19 (July 22, 2004); Kalhora and Radenstein, at pp. 304-305; and compare the Law of Torts, at pp. 350-351). One of the main results stemming from the procedural nature of the immunity is that although the injured party cannot repay his damages from the public servant personally, this does not detract from his right to be reimbursed by the state or the public authority as the employee's employer or sender (section 7a(b) of the Ordinance; cf. Avnieli, at pp. 464-463, 467). In addition, and due to the procedural nature of the immunity granted to a public servant under section 7a(a) of the Ordinance, the way is paved for the state or the public authority to demand indemnification fees from the employee, even in those cases in which it has decided that in the relationship between him and the injured party, it is appropriate to grant the employee immunity (section 7f of the Ordinance).
- The purposes and rationales that underpinned the procedural immunity granted to public servants under Amendment 10 to the Ordinance were discussed by the initiators of the amendment in the explanatory notes to the bill, saying:
It is justified to recognize the special status of public servants because they are exposed to liability risks due to the authority's extensive possibility of damage; Public servants are exposed to pressure by way of filing unjustified personal lawsuits or the threat of filing such lawsuits, which is liable to affect their functioning and disrupt the activity of the public authority; In terms of