Tort Claim – What is it and when can you file a tort claim?

What is a tort claim?

A tort claim (or tort claim) is a claim that deals with some kind of damage caused to the plaintiff by the defendant. The basis for filing a tort claim may be monetary damage (damage that can be valued in money – for example: damage caused to a car) or Non-pecuniary damage (Damage that cannot necessarily be valued in money – for example, damage in the form of Mental anguish).

A tort claim can be filed following an act or omission. For example: a person broke another person's hand. Following the break (act), a tort claim is filed against the person responsible for it.

Another example: a lawyer who did not file Defense Therefore, the customer received the Judgment in the absence of a defenseIn this example, failure to file a defense is a default for which a claim can be filed. Lawsuit against a lawyer Alleging negligence. This is also a tort claim.

במסגרת תביעת נזיקין אין עדיפות ל"מעשה" על פני "המחדל". לעיתים "המחדל" עשוי להוביל לנזק ממוני או לא ממוני כבד יותר לנפגע. במסגרת כל תביעה נסיבות המקרה נבחנות לגופו של עניין, וכך גם חומרת הנזק ממנו סבל הנפגע.

The legislation that may be relevant to any tort claim is the Torts Ordinance [New Version]. Section 3 of this Ordinance states as follows:

The things listed below in this ordinance are torts, and subject to the provisions of the ordinance – Anyone injured or damaged by a wrong committed in Israel will be entitled to the remedy specified in the ordinance from the perpetrator of the wrong or the person responsible for it..

Pay attention – פקודה זו חלה אך ורק על עוולות שהתרחשו בישראל. בגין עוולות שהתרחשו בחו"ל צריכים להעזר הוראות חוק אחרות (ולבחון האם מלכתחילה ניתן או כדאי להגיש תביעה נזיקית בישראל או שמא צריכים להגיש את התביעה באותה מדינה בה התרחשה העוולה).

Preparing to file a tort claim

It is important to remember that in any tort claim, the burden of proof lies with the plaintiff. That is, the plaintiff must prove his claim and arguments in court. If the plaintiff files a claim without gathering appropriate evidence, he may be required, at the very least, to request Amendment of the statement of claimThis will inevitably harm the plaintiff because he will be forced to pay legal costs to the defendant (since the defendant will be forced to file an amended defense) and the procedure will return to the starting point, which could lead to a delay of months or even years in the clarification of the claim.

על מנת להימנע מכך על התובע לאסוף את כל הראיות/הנתונים שיכולים לסייע. נתונים אלה יכולים להיות בדמות תצלומים, הקלטות שיחות, התכתבויות דוא"ל/וואטסאפ/SMS, עדים רלוונטיים שראו את האירוע בגינו מוגשת התביעה, Expert opinion Insofar as it concerns damage or an event that requires certain expertise.

An expert opinion is very important. In many cases (such as personal injury), failure to submit an expert opinion to the court file may result in your claim being dismissed or in you receiving significantly less financial compensation in a tort claim than you actually deserve.

In some cases, before filing a tort claim, it is a good idea to send the potential defendant Warning letter before lawsuit. As part of this warning letter, you will briefly detail what you intend to file a tort claim for, and what exactly you are demanding at this stage. If the defendant responds to the letter, he is expected to briefly detail his position or claims regarding the incident for which you intend to file a tort claim. It is possible that what he writes in the response to the warning letter will assist you in gathering additional data, and at the very least, you will have an initial version of the potential defendant. Based on this version, you will be able to draft the claim in a smarter and more correct manner.

The expected costs to the plaintiff when filing a tort claim

Court fee

Before filing a tort claim, the plaintiff should take into account that this type of claim involves quite a few costs. The plaintiff is obligated to pay Court fee At a rate of 2.5 percent of the claim amount (except in claims for personal injury), of which 1.25% of this amount must be paid when filing a tort claim immediately upon filing the claim and the other half at a much more advanced stage (before The evidence discussion). את סכומי האגרה המלאים בכל מקרה ומקרה ניתן לקרוא במסגרת תקנות בתי המשפט (אגרות), תשס"ז – 2007.

Lawyer's fees

In some cases, the plaintiff will be forced to pay the lawyer a fee in advance, and sometimes the fee will be paid at the end of the procedure based on success (in matters such as medical damages or personal injuries in traffic accidents, fees are charged based on a percentage of the amount awarded in favor of the plaintiff). In many other cases, the plaintiff will be forced to agree with the lawyer on a fee that will be paid in advance and will not depend at all on the outcome of the procedure. The fee is a very significant component of the plaintiff's expenses and may reach very significant amounts.

Expert opinion

Expert opinion It may be necessary in many cases, and without it it will not be possible to win the lawsuit. An expert opinion may cost between a few thousand and a much more significant amount exceeding ten thousand shekels.

The cost of the opinion depends, among other things, on the person providing the opinion. There is a big difference in the cost of an expert opinion in a situation where an appraiser provides such an opinion versus a professor of medicine.

Ongoing expenses for managing a tort claim

The client must take into account that managing a tort claim involves additional ongoing expenses, such as couriers to the court or to the opposing party (it is not always possible to send the documents via registered mail), sometimes printing costs if there is an abnormal amount of material that needs to be printed, and fuel/travel costs for the lawyer (not all lawyers charge this, especially if the amounts involved are negligible, but these expenses are not part of the legal fees and the lawyer may charge them).

Usually, these expenses in a tort claim do not amount to significant amounts, but they cannot be ignored.

Common types of tort claims

There are many different types of tort claims, but they can generally be divided into the following categories (of course, this is a non-exhaustive list).

Damages claim for bodily injury

This category includes all tort claims that deal with medical damages or bodily harm (for example: professional negligence of doctors or a car accident in which a person was injured or a dog bitten). The court fee in these cases is different from the fee mentioned earlier.

Damages claim for property damage

This category includes all tort claims that deal with damage to apartments, vehicles, offices, water leaks or dampness, etc.

Tort claim for non-pecuniary damages

This category includes all tort claims that deal with damages such as: Mental anguish. חשוב להכיר את הגדרת "נזק" בפקודת הנזיקין, אשר קובעת כך:

"נזק" – אבדן חיים, אבדן נכס, comfort, physical well-being or a good name, or subtraction from them, And any loss or deficiency as a result of these;

According to this definition also Defamation lawyer The person filing a defamation lawsuit is acting on the tort level and is filing a tort claim.

What kind of tort claim can actually be filed?

The Torts Ordinance specifies which wrongs allow a tort claim to be filed under this ordinance (tort claims can also be filed under additional legislation).

Damages claim for assault

Section 23 of the Torts Ordinance states as follows:

23. (A) attack It is the intentional use of force of any kind against the body of a person by hitting, touching, moving or in any other way, whether directly or indirectly, without the person's consent or consent obtained by fraud, as well as an attempt or threat, by act or by movement, to use such force against the body of a person, when the attempter or the threater causes the person to assume, on reasonable grounds, that he does indeed have the intention and ability to carry out his plan at that time.

Tort claim for false imprisonment

Section 26 of the Torts Ordinance states as follows:

26. False imprisonment is the deprivation of a person's liberty, absolute and unlawful, for any period of time, by physical means or by the appearance of authority.

Damages claim for trespassing

A tort claim can be filed for trespassing on real estate or movable property.

With respect to real estate, Section 29 of the Torts Ordinance states as follows:

29. Trespass on land is the unlawful entry into land, or the unlawful damage or disturbance by a person to land; but no plaintiff can recover damages for trespass on land unless he has suffered pecuniary damage thereby.

With respect to movable property, Section 31 of the Torts Ordinance states as follows:

31. Trespass to chattels is the unlawful taking of goods from the possession of another person, or violent interference with them while in the possession of another person; but no plaintiff can recover damages for trespass to chattels unless he has suffered pecuniary damage thereby.

Damages claim for negligence

The relevant sections to this tort are sections 35-36 of the Torts Ordinance.

Article 35 states as follows:

35. If a person does an act which a reasonable and prudent person would not have done in the same circumstances, or fails to do an act which a reasonable and prudent person would have done in the same circumstances, or in a certain profession does not use skill, or does not exercise a degree of caution, which a reasonable and prudent person qualified to act in that profession would have used or exercised in the same circumstances – this is negligence; and if he is negligent as aforesaid in relation to another person, towards whom he has a duty in the same circumstances not to act as he did, this is negligence, and the person who causes harm to another by his negligence commits a wrong.

Article 36 states as follows:

36. The duty referred to in section 35 is imposed on every person and on the owner of any property, whenever a reasonable person in the circumstances should have foreseen that they might in the ordinary course of things be harmed by an act or omission specified in that section.

Damages claim for dog bite

Section 41A of the Torts Ordinance states as follows:

41A. In a claim for bodily harm caused by a dog, the owner of the dog or the person who permanently owns the dog (hereinafter – the owner) is obliged to compensate the injured party, and it is irrelevant whether or not there was negligence on the part of the owner.

A tort claim for public nuisance or nuisance to an individual

Sections 42 and 44 of the Torts Ordinance deal with the issue of nuisance to the public or nuisance to an individual.

Public nuisance:

42. A public nuisance is an unlawful act or omission from a legal obligation, where the act or omission endangers the life, safety, health, property or comfort of the public, or is an obstacle to the public from exercising a public right.

Individual nuisance:

44. (a) A nuisance to an individual is when a person conducts himself or conducts his business or uses the land occupied by him in a manner which substantially interferes with the reasonable use of the land of another person or with the reasonable enjoyment thereof, having regard to its location and nature; but no compensation shall be payable by a person for nuisance to an individual unless he has suffered damage thereby.

A claim for damages for deception, fraud, or falsehood against the injured party

These matters are regulated in sections 56 and 58 of the Torts Ordinance.

fraud:

56. Fraud is a false representation of a fact, knowing it to be false or not believing it to be true or out of frivolity, when the presenter does not care whether it is true or false, and with the intention that the person deceived by the representation will act upon it; however, no action may be brought for such representation unless it was intended to mislead the plaintiff, and did deceive him, and the plaintiff acted upon it and thereby suffered financial loss.

Lying in the victim:

58. (a) A defamatory statement is the publication of a false statement with intent, whether orally or otherwise, concerning a person's business, profession, or goods or property; but no compensation shall be payable for such publication unless he has suffered pecuniary damage thereby.

Damages claim for accessible wrongdoing

Section 60 of the Torts Ordinance states as follows:

60. Accessible is the commencement or continuation of a proceeding that has failed – in fact, maliciously, and without reasonable and probable cause – against a person, in criminal or bankruptcy or liquidation proceedings, and the proceeding has damaged his credit or good name or endangered his liberty, and has ended in his favor, if the proceeding could have ended so; but no action shall be brought against a person for accessible merely because he has provided information to a competent authority that has initiated proceedings.

A claim for damages for a crime Breach of contract

Section 62 of the Torts Ordinance states as follows:

62. (a) Whoever knowingly and without sufficient justification Causes a person to improve a contract A person who is legally obligated to a third person commits a wrong against that third person, but the third person cannot be compensated for this wrong unless he suffers financial damage as a result.

Damages claim for breach of statutory duty

Section 63 of the Torts Ordinance states as follows:

63. (a) A person who fails to perform a duty imposed on him by any enactment – ​​other than this Ordinance – and the enactment, properly construed, is intended for the benefit or protection of another person, and the breach has caused that person damage of the kind or nature of the damage intended by the enactment; but the other person is not entitled by reason of the breach to the remedy expressly provided for in this Ordinance, if the enactment, properly construed, was intended to provide for such remedy.

(b) For the purposes of this section, an enactment is deemed to be made for the benefit or protection of a particular person if, according to its proper interpretation, it is intended for the benefit or protection of that particular person or for the benefit or protection of persons in general or of persons of a class or class to which that particular person belongs.

In conclusion

A tort claim is not a simple claim and must be prepared for accordingly. It is very important to gather the appropriate evidence because without it you may find that you have conducted Idle procedure whose chances of success were low from the start.

Before filing a tort claim, it is also very important to be aware of all the expected expenses for the plaintiff, especially the costs of an expert opinion, which may reach extremely high amounts.

When filing a personal injury claim, it is important to contact a personal injury lawyer who has previously filed claims of the same type you wish to file and won. Sometimes the lawyer's experience plays a crucial role in handling a personal injury claim.

Frequently Asked Questions Regarding a Damages Claim