Second, even if the same ultimatum relating to the plaintiff's dress had been proven, the defendant should have vehemently rejected the defendant's demand and not responded to it. Even in a situation where the defendant's employees acceded to another's demand, and did not provide service, they cannot be protected by the very act of acceding to an improper demand that is done in violation of the law. At most, we are dealing with a person who can have a contribution to the injury to the plaintiff in a way that establishes liability towards the defendant as well, but this is not the case in the case before me.
- According to case law, failure to bring a relevant witness establishes a presumption that if the testimony had been heard, it would have strengthened the opposing party's version (Civil Appeal 641/87 Kluger v. Israel Tractors and Equipment Company in Tax Appeal [Nevo] (8 January 1990), p. 244), Civil Appeal 55/89 Koppel (Self-Driving) in Tax Appeal v. Telcar Tax Appeal Company [Nevo] (November 14, 1990), p. 603).
The defendant knew very well that the plaintiff's and the defendant's version was that the defendant did not express any objection that the plaintiff should get into the ambulance because of her dress, and yet she was not brought to the testimony of that passenger - a neutral witness - in order to support the defendant's version, that the defendant did indeed refuse to travel with the plaintiff in the same vehicle because of her dress and later that he even got out of the car and shouted that he would not return to him if the plaintiff joined the trip. This is a passenger who sat next to the defendant and could testify to everything he said and of course shed light on the question of whether the defendant got out of the car or not and why.
The other passenger appeared on the list of the defendant's witnesses, but in practice she did not submit an affidavit and she was not summoned to testify on behalf of the defendant. The defendant's refusal to bring the other passenger to testify will be credited to her duty and may strengthen the plaintiff and the defendant's version that the defendant did not pay any attention to the plaintiff's clothing and did not get out of the vehicle as a result.
- In her summaries, the defendant sought to attribute to the plaintiff's obligation not to bring her neighbors who witnessed the incident, but I did not find it necessary to do so. The plaintiff stated that she moved to live in the area close to the time she contracted the coronavirus, and therefore did not know her neighbors and did not know which of them witnessed the incident. This version of the plaintiff was not contradicted, and therefore, under these circumstances, it should not be expected that she would proactively contact each and every neighbor in order to find out who witnessed the incident and thus empower and inform her neighbors of the circumstances of the incident, which in any case caused her difficult feelings.
- In light of all of the above, it was proven that the defendant's employees refused to transport the plaintiff in an ambulance for the purpose of evacuating her to a corona motel. It was proven that they did so in light of a demand that was placed before her to change her clothes, shorts and tank top, to "modest" clothes, on the grounds that the defendant had set this demand as a condition for her joining the transportation, even though there was no such demand on the part of the defendant. Since the plaintiff did not have clothes as demanded by the defendant's employees, and her pleas to allow her to join the trip were not answered, she was forced to return home and wait for the bus that was scheduled for later that day.
The defendant's employees did not try to inquire with the defendant about the meaning of his demand, nor did they try to dissuade him from doing so (in which case they would have discovered their mistake) and did not offer any alternative that would allow the plaintiff to join the trip. The defendant's employees' attitude toward the plaintiff was disrespectful and humiliating at the time of the incident, as they emerge from their explanations in their testimony before me.