(b) did not give benefits to a passenger whose flight was canceled, in contravention of the provisions of section 6;
[...]
(b) When determining the amount of exemplary compensation, the court shall take into account, inter alia, the considerations detailed below, and shall not take into account the amount of damage caused to the passenger as a result of the cancellation of the flight or the change in the time or conditions of its departure:
(1) Enforcement of the law and deterrence against its violation;
(2) encouraging the passenger to exercise his rights;
(3) that the violation is a repeat violation;
(4) the severity and circumstances of the violation;
(5) The monetary value of the transaction in connection with which the breach was committed.
(c) The provisions of this section do not derogate from a passenger's right to benefits due to that violation.
- As stated, the source of the obligation to actively offer the passenger a choice between restitution and an alternative ticket is section 6(a)(2) of the Law. Therefore, according to section 11(a)(1)(b) of the Law, the court is authorized to award exemplary damages to the passenger for the breach of this duty.
- Prima facie, it could have been argued that the wording of section 11(a)(1)(b) of the Law - "did not give benefits" - shows that the section does not apply to the non-granting of the right to choose, but only to the actual denial of the benefits, i.e., to the non-provision of an alternative flight ticket and the refusal to return the consideration. However, I am of the opinion that within the framework of the benefits to be provided to a passenger whose flight was cancelled (which is defined in section 1 of the Law as "any of the following: refund, alternative flight ticket, financial compensation and assistance services"), the passenger's right to choose between the various alternatives is inherently included. This right is intended to enable the passenger to choose the most appropriate alternative for his condition and in this way to improve his condition in the best possible way. Hence the conclusion that the denial of the right to choose as aforesaid is the denial of the passenger's right to come to his full correction.
The Taste 30Provision of the right to vote as aforesaid Lies in the differences between different passengers Light Goals Their flights. For example, some passengers fly for a specific event - participation in a family event or conference, watching a sports game, giving a lecture, etc.; In cases such as these, the cancellation of the flight may make the entire trip obsolete, in the sense that "its time has passed, cancel its sacrifice" - and therefore, these passengers have no interest or benefit in receiving an alternative flight ticket. In contrast to these passengers, other passengers wish to fly to their chosen destination even in circumstances of flight cancellation or postponement. A clear example of this is the cancellation of a flight to Israel, when it comes to passengers who are residents of Israel who wish to return home. These passengers need an alternative flight ticket and cannot be satisfied with a refund of the consideration they paid. In other words, and if we derive a decree equal to the laws of contracts: there are passengers who are interested in the remedy of cancelling the contract and restitution of consideration; On the other hand, there are passengers who are interested in enforcing the contract. Both are entitled to be fully corrected.
- Usually, flight organizers and operators are not aware of the needs and desires of each and every passenger. For this reason, it is their duty to allow each and every passenger to choose between the benefits that the law makes available to them in the event of a flight cancellation - as part of their legal duty to ensure that their passengers realize the benefits. It is therefore plain that a flight operator or organizer who refrains from providing a choice between the available alternatives for each and every passenger imposes on some of the passengers a "benefit" that they do not need and robs them of the benefit they need. From this we learn that the denial of such the right to vote is tantamount to the denial of benefits to which passengers are entitled by virtue of the law. I will add that the failure to grant such a right to vote detracts from the passengers' fundamental right to autonomy, in a way that imposes on them a will different from their own (see and compare: Gideon Parchomovsky & Alex Stein, Autonomy, 71 Toronto L.J. 61, 65-70 (2021); Civil Appeal 2781/93 Da'aka v. Carmel Hospital, Haifa, IsrSC 55(4) 526 (1999)). In respect of the denial of these benefits, the court may obligate the flight organizer and its operator to pay exemplary damages in favor of the passenger.
- At the same time, I am of the opinion that despite the authority granted to the court to award exemplary compensation for the failure to offer the passenger the right to vote, it is appropriate to exercise extreme caution in awarding exemplary damages for a breach of the duty to inform.
I'll list my reasons.
- Our legal system recognizes the possibility of awarding punitive damages that do not reflect the real damage that was actually caused to the victim of a violation of the law or an act of wrongdoing. These compensations are intended to punish the tortfeasor, promote effective deterrence, and sometimes even convey an educational message to the public. However, traditionally, case law has treated compensation without proof of damage with great caution and ruled sparingly, only in exceptional cases (for a comprehensive review of this issue, see: Civil Appeal 140/00 Estate of the late Ettinger v. Company for the Reconstruction and Development of the Jewish Quarter in the Old City of Jerusalem Ltd., IsrSC 58(4) 486, 563-568 (2004)).
- This cautious approach should also be applied with respect to exemplary compensation that can be imposed by virtue of the Aviation Services Law. Awarding exemplary damages is a powerful tool in enforcing this law and in strengthening deterrence against flight organizers and operators, who choose to knowingly violate the provisions of the law. This tool has clear consumer advantages, but it is a "bill and its side is broken": awarding compensation for example with a light hand will cause, at the end of the day, to impose the additional cost of operating flights on the passenger public by raising the price of tickets - and the passengers will lose their wages.
- I am therefore of the opinion that it is appropriate to dedicate the award of exemplary damages for breach of the duty to inform a passenger of the right to choose, to those cases in which the conduct of the airline was particularly severe or when it was accompanied by breaches of additional duties prescribed by law.
- From the general to the individual: I am of the opinion that the District Court ruled as it ruled. In view of the violations committed in this case in relation to the provision of food, beverage and accommodation services to the passengers of flight IZ 776, I have found no room for our intervention in the amount of compensation awarded to the respondents.
Conclusion
- In light of all of the above, I would suggest to my colleagues that the applicants be granted leave to appeal, but the appeal will be dismissed on its merits. In view of the result I have reached, I propose that the Applicants bear the Respondents' expenses in the total sum of ILS 15,000.
Alex SteinJudge
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