E.2.5. Discussion and Decision
- At the outset, I will emphasize that Pinkowitz's arguments, in essence, are directed towards factual determinations made by the trial court, in which there is no room to intervene. The court was impressed by the testimonies and findings of CPA Darman, Mr. Dayag and CPA Bilu, and on the basis of this impression and additional evidence, held that: "It has been proven beyond doubt that from 1999 onwards... Pinkowitz breached this duty [the duty of fiduciary, Z.Z.], and his actions, not only were not done for the benefit of the company, but were done against its interest" (paragraph 153 of the trial judgment). Pinkowitz's arguments and testimony were rejected by the trial court, and his version and explanations of the various actions for which he was sued were found to be unreliable. As stated, I did not find any intervention in these findings, despite Pinkowitz's repetition of his version and his arguments before us as well.
- However, the main question that arises in light of the trial court's determination that Pinkowitz caused the entire damage claimed by the plaintiffs when he breached his fiduciary duty to the company, is this: whether his actions are not included in the tort of negligence and whether he cannot be charged for the amount of the damage claimed for this cause. The judgment of the trial court indicates that we are dealing with two separate and different causes of action, and one does not contain the other. Therefore, and once Pinkowitz is found to have breached the fiduciary duty, according to the ruling of the trial court, he cannot be considered "negligent", and he should be liable only for the sum claimed on the grounds of breach of fiduciary.
- My view on this issue is different. The rule is that negligent behavior is behavior that deviates from the proper standard, even when the mental element that led to this behavior is intention or malice:
"Negligence as a cause of action in torts has a broader meaning and means conduct that falls short of a certain standard set by law. The test is objective.... Conduct that does not conform to the objective standard constitutes negligence, and one is whether the motive for this behavior is deliberate desire, or lack of care or lack of attention" (Amnon Rubinstein and Daniel Friedman, "Public Servants' Liability in Torts," The Book of Daniel: Studies in the Thought of Professor Daniel Friedman 881, 887 (2008); originally published inHapraklit 21 61 (1964)).