Wage losses in the past
- Past wage losses are defined as "special damage", which requires proof of evidence (Civil Appeal 810/81 Levy v. Mizrahi [published in Nevo] (March 26, 1985)).
- On the eve of the accident, the plaintiff was employed by the Economy and Economics Company, where she worked for about 12 years. According to the pay slips attached on behalf of the plaintiff, her average monthly salary (net of income tax) was ILS 9,809.
The plaintiff was fired from her job a few days after the accident, against the background of allegations raised against her conduct, and there is no dispute that the dismissal was not due to the accident. Therefore, even if it were not for the accident and the period of incapacity, the plaintiff would have found herself unemployed from work during this period. In practice, the plaintiff received full salary for the month of the accident, April 2018, and in May 2018 she received salary for the notice period, as well as account termination, vacation redemption, and severance pay. In these circumstances, during the period of incapacity determined by the orthopedic specialist for a month and a half, the plaintiff did not suffer a loss of wages.
Subsequently, the plaintiff was determined to have a temporary disability of 40% for three months and 20% for an additional three months. Due to the fact that the plaintiff was fired from her job, it is difficult to determine the effect of the functional impairment following the accident on her ability to return to work, and at what time she would have been integrated into a new job. In practice, the plaintiff began working at the "Circles" fund in the middle of August 2018, so that for two and a half months she did not earn any money at all. Assuming that if it were not for the temporary disability, the plaintiff would have started a new job within two or three months of the date of dismissal, as happened when she was fired from the "Ma'agalim" fund, it is possible to attribute to the accident a loss of earnings of about one month, and to determine global compensation in the amount of ILS 10,000, including the pension component, together with interest and linkage, in the sum of ILS 13,300.
- Subsequently, the plaintiff was employed for 13 months in the "Circles" fund, at a relatively low salary, in the amount of approximately ILS 8,000 on average. In view of the fact that the plaintiff worked full-time, it is difficult to attribute the full decrease in her salary to her disability due to the accident, and it is reasonable to assume that the decrease in wages also stemmed from the change of job. According to an arithmetic calculation based on a disability rate of 10% and based on the salary base, the amount of the loss is ILS 14,350, including the pension component, together with interest and linkage in the sum of ILS 18,800.
After the plaintiff was fired from her job, she received unemployment benefits, and then integrated into a new job, and within a few months she managed to return to the level of salary she received on the eve of the accident, and in her current job her salary increased. In these circumstances, I am of the opinion that no additional loss of wages has been proven in a causal connection with the disability due to the accident.
- Therefore, and in view of the fact that the plaintiff showed that she suffered actual losses, the amount of compensation due to the plaintiff for past losses, including the pension component at the rate of 12.5% and including interest and linkage, is ILS 32,100.
Loss of earnings in the future
- In general, the determination of the degree of functional disability, and as a result the determination of the rate of deduction from wages, must be done according to the personal characteristics of the concrete injured party, taking into account all the relevant considerations and the specific circumstances of the injured party: his occupation, education, age, the extent of the effect of the medical disability on his ability to practice his profession and work in the workplace in which he was employed prior to the accident, and the existence of a guaranteed place of work in which the injured party can continue to be employed (see Civil Appeal 237/80 in Resheshet v. Hashash et al., IsrSC 36(1) 281) (1981); Civil Appeal Authority 4302/08 Shalmaev v. Badarna [Nevo, July 25, 2010], as quoted in Civil Appeal Authority 6572/21 The Israeli Vehicle Insurance Database (The Pool) v. Anonymous [Nevo, October 20, 2021]).
In order to determine the rate of deduction from earning capacity, a distinction was made in case law between three different concepts: "medical disability", "functional disability" and "loss of earning capacity". In the Giorgisian case, it was held that the terms do not overlap, and that it is possible that there is a situation in which there is a medical and functional disability that does not cause an actual loss of earnings (Civil Appeal 722/86 Yones v. The Israeli Vehicle Insurance Database, IsrSC 34(3) 875 (1989); Civil Appeal 2577/14 Anonymous v. The Israeli Database for Car Insurance in a Tax Appeal [published in Nevo] (January 11, 2015)).
- The plaintiff argues in her summaries that the loss of earnings in the future should be calculated according to a monthly wage equal to the average wage in the economy, in the amount of ILS 12,231 (after deducting income tax), and according to a deduction rate of 26%.
The defendants claim that the plaintiff should not be awarded any compensation for this damage, due to the fact that she did not suffer a deduction from her earning capacity, and in fact her current salary is higher than her salary prior to the accident. The plaintiff testified that after the accident she would have been able to return to her previous position, had she not been fired. According to the documents in the plaintiff's employee file, there was no expectation of a significant improvement in her salary, and in practice, the background to the plaintiff's struggles that led to her dismissal was dissatisfaction with her salary, as the hearing letter shows.
- A review of the pay slips that the plaintiff attached to her evidence shows that in 2023 her average monthly salary was approximately ILS 12,000. As of July 2024, the plaintiff's average monthly salary was approximately ILS 12,480 (after deducting income tax). This salary reflects an increase (in real terms) of about 10% compared to the plaintiff's salary at the time of the accident. From these data, it can be learned that after the plaintiff found her place and integrated into a suitable job, she returned to the level of salary she had before the accident, and even slightly higher.
- The ruling ruled that compensation should also be awarded to those who did not prove that their salary was deducted after the accident, since there is a possibility that the results of the accident will be reflected in the future. In calculating compensation in such a case, one must take into account the defect of the injured party, his age and the number of years of work he has left, as well as his field of occupation and the possibility that he will be fired from his place of work and forced to find an alternative place of work, or that his promotion at the workplace will be stopped. Therefore, there is room to determine a global sum that takes into account all of these data (see Civil Appeal 395/81 Menachem Brook v. Hassana Israeli Insurance Company [published in Nevo] (March 5, 1984); Civil Appeal 4837/92 Eliyahu Insurance Company v. George Borba [published in Nevo] (November 23, 1994)).
- The plaintiff is now 46 years old and three months old, and she has about 20 years of work before her until retirement age.
Regarding the difficulty in assessing her situation and the possibility that she will suffer a loss of earnings in the future, the words of the Honorable Justice N. Hendel inAdditional Civil Hearing 6370/19 Anonymous v. The Israeli Database for Car Insurance "Pool" [published in Nevo] (November 10, 2020):