At the same time, in the judgment given in Other Municipality Applications 7862/22 Daknas v. Defrawi [published in Nevo] (July 20, 2023) (hereinafter: the Dakhnas case), the Honorable Justice Amit (as he was then called) ruled that there is room to have some reservations about the decisive determination in the Hayoun ruling:
"First of all, it seems to me that the decisive statement quoted above is inconsistent with the evidentiary rule of 'plaginen speech.' This rule, which has good force in both criminal and civil law, is based on general logic, on life experience and judicial experience, all taking into account the circumstances of the case and the 'signs of truth' that were discovered during the trial (see, for example, Criminal Appeal 5864/18 Anonymous v. State of Israel and the references there [published in Nevo] (August 22, 2021)). The court therefore has the prerogative to split between the parts of the testimony and to select the parts of the truth, and this is also implied by the provision of section 57 of the Evidence Ordinance [New Version], 5731-1970, which states as follows: 'Contradictions in the testimony of witnesses do not, in and of themselves, prevent the court from establishing facts in respect of which the contradictions apply.'
Second, judicial experience shows that witnesses lie or make mistakes or contradict themselves for all sorts of reasons, and I have discussed this at length elsewhere (see my judgments in criminal appeal 511/11 Marisat v. State of Israel, para. 22 [published in Nevo] (March 14, 2012); and in criminal appeal 5/10 Musa v. State of Israel, para. 4 [published in Nevo] (May 2, 2012))."
Accordingly, even after it has been determined that the appellant lied and exaggerated his damages, it was held that this does not mean that all of his arguments should be rejected:
"Indeed, as a matter of legal policy, it is desirable that the liars 'pay a price' for their lies, and the court must express this both in the matter of expenses and in the award of compensation by way of minimization and even by way of reduction... But we should not go far from here until the claim is dismissed due to a 'false presumption' regarding the question of liability or with respect to each and every one of the heads of the damage."
- From the general to the individual. Despite my impression that the plaintiff tried to glorify the circumstances of the incident and the damage caused to her, as well as to set aside the matter of the massage mentioned in the medical records, this does not lead to the conclusion that her version should not be accepted and trusted, when it is also supported by external testimonies that were found to be reliable, as well as the testimonies of the various experts. The defendant's version and testimony also suffer from considerable doubts as to his reliability, and therefore I tend to prefer the plaintiff's version, which is consistent with the totality of the circumstances and the rest of the testimonies and evidence.
Did the plaintiff meet the burden of proving that the incident was a road accident?
- Since I have come to the conclusion that the plaintiff's version of the description of the circumstances of the incident should be preferred, and that there is a causal connection between the incident and the damage caused to the plaintiff, it is an accidental event that constitutes a "road accident", as defined in section 1 of the Compensation Law - "an event in which a person suffered bodily injury due to the use of a motor vehicle for transportation purposes".
- The defendants claim that at the end of the proceeding, the plaintiff did not meet the burden of proving her claim. Thus, it was argued that the plaintiff did not lay the factual basis to prove her claim that following the ride on the cattle crossing, her body rose in the air to a great height and landed violently on the seat, in a manner that caused her injury and damage. The plaintiff did not prove the speed of travel, the height of the step on which the motorcycle was traveling, and the height to which her body rose in the air. Therefore, the plaintiff did not prove the causal connection and did not prove the extent or intensity of the shock caused to her body during the incident and the possibility that it caused her damage, as she claims.
The defendants do not dispute the fact that the ride on the motorcycle meets the definition of using a motor vehicle for transportation purposes, but rather argue that the plaintiff did not prove that during the trip there was a specific event that caused the injury, since the road was paved with a number of speed bumps and cattle interceptors, in a way that does not allow isolating a defined accidental event and showing that it caused the damage caused to the plaintiff.
- In order to examine these claims, it is necessary to define a "road accident" and the degree of proof required in the proceeding of a claim under the Road Accident Victims Compensation Law. While the defendants wish to argue that the plaintiff did not prove her claims and that it is sufficient to have doubts regarding the causal connection between the incident and the damage, it should be remembered that the plaintiff must prove the elements of her claim with the balance of probabilities required in a civil trial. Therefore, even if there are certain doubts regarding the plaintiff's version, I am of the opinion that in the test of the decision, the scales are tilted in her favor, and this is sufficient to lead to the conclusion that the claim should be accepted.
- As determined in the Basic Judgment in the Civil Appeal Authority 8061/95 Ozer v. Ararat Insurance Company Ltd., IsrSC 50(3) 532 (1996), in the first stage, the existence of the following six components of the basic definition must be examined: (1) event (2) bodily injury (3) due to (4) use (5) motor vehicle (6) for transportation purposes.
The burden of proving the elements of the definition is on the person claiming the existence of a road accident, and if one of these elements does not exist, then the case does not fall within the basic definition of a road accident.
- In the judgment in Tel (Haifa) 942/04 Estate of the late Akkawi Hemed v. Karnit Road Accident Victims Compensation Fund [published in Nevo] (September 25, 2007), which was adopted properly and requires other municipal requests 4574/11 Estate of Ajjud v. Phoenix [published in Nevo] (May 19, 2013), the District Court (the Honorable Judge Y. Willner) determined the degree of proof required to prove the existence of a road accident when the circumstances of the accident remained ambiguous, when in that case it was a fatal accident and in the absence of a version of the person involved. It was held that the plaintiffs must prove that the accident occurred and occurred while using a motor vehicle, at the level required by civil law, by presenting positive evidence proving that the accident occurred; and to prove the causal connection between the accident and the damage. Therefore, the following model was proposed:
"The plaintiffs must show that typical findings were found at the scene of the accident, which indicate, as a reasonable possibility, that the use of the vehicle contributed in a relevant, real way to the occurrence of the damage (see the words of the Honorable Justice Or inAdditional Civil Hearing 4015/99 Rotem v. Mazawi IsrSC 57(3) 145 (2002), such as; injuries to the driver's body that could have caused damage or fatal result; braking signs at the scene; obstacles in the driving route, And more. If the plaintiffs met this (primary) burden, then the burden shifts on the insurer to produce evidence that establishes a real suspicion that the injury or death was caused by various circumstances that do not stem from the accident. Meeting this (heavy) burden will return the ball to the plaintiffs' court and will place on them the final burden of persuasion or the secondary burden of proof to refute the said suspicion. A balanced situation in this case will lead to the dismissal of the lawsuit." [Emphasis in the original - K.S.].