What is a tort claim?
A tort claim is a claim that deals with any 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-monetary damage (damage that cannot necessarily be valued in money – for example, damage in the form of emotional distress ).
A tort claim can be filed following an act or omission. For example: A person broke another person's hand. Following the act, a tort claim can be filed against the person responsible for it.
Another example: a lawyer who did not file a statement of defense and therefore the client received a judgment in the absence of a defense. In this example, failure to file a statement of defense is a default for which a lawsuit can be filed against a lawyer alleging negligence. This is also a tort claim.
In the framework of a tort claim, the "act" does not have priority over the "omission". Sometimes the "failure" may lead to heavier monetary or non-monetary damage to the victim. As part of each lawsuit, the circumstances of the case are examined on a case-by-case basis, as is the severity of the damage suffered by the victim.
The legislation that may be relevant to any tort claim is the tort ordinance [new version]. Section 3 of this order 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 tort committed in Israel will be entitled to the remedy specified in the ordinance from the perpetrator of the tort or the person responsible for it.
Please note – this order applies only to wrongs that occurred in Israel. For wrongs that occurred abroad, other provisions of the law should be used (and to examine whether it is possible or worthwhile to file a tort claim in Israel or whether the claim should be filed in the same country where the wrong occurred).
Preparation for filing a tort claim
It is important to remember that in any tort claim, the burden of proof rests with the plaintiff. That is, the plaintiff must prove his claim and his arguments in court. If the plaintiff submits a statement of claim without collecting appropriate evidence, he may have to, at the very least, request an amendment to the statement of claim . This will inevitably harm the plaintiff because he will have to pay court costs to the defendant (because the defendant will have to file an amended statement of defense) and the procedure will return to the starting point, which can lead to a delay of months or even years in the investigation of the claim.
In order to avoid this, the plaintiff must collect all the evidence/data that can help. This data can be in the form of photographs, call recordings, email/WhatsApp/SMS correspondence, relevant witnesses who saw the event for which the claim is filed, an expert opinion insofar as it is a damage or an event that requires a certain expertise.
Expert opinion is very important. In very many cases (such as personal injuries), failure to submit an expert opinion to the court case may lead to your claim being rejected or to you receiving, as part of a tort claim, significantly less financial compensation than what you actually deserve.
In some cases, before filing a tort claim, it is useful to send the potential defendant a pre-claim warning letter . As part of this warning letter, it will be briefly detailed for what you intend to file a tort claim, and what exactly you require at this stage. If the defendant replies to the letter, he is expected to briefly detail what his position or claims are regarding the incident against which you intend to file a tort claim.
It is possible that precisely what will be written as part of the response to the warning letter will help you collect additional data, and at the very least, you will have a preliminary version of the potential defendant. According to this version, you can draft the statement of claim in a smarter and more correct way.
The expected costs for 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 a court fee of 2.5 percent of the amount of the claim (except for personal injury claims), of which 1.25% 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 hearing of the evidence). The full fee amounts in each case can be read within the Courts (Fees) Regulations, 2007.
Attorney's fees
In some cases, the plaintiff will be forced to pay the attorney a fee in advance and sometimes the fee will be paid at the end of the procedure according to success (in matters such as medical damages or bodily 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 have 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 legal fees are a very significant component of the plaintiff's expenses and may reach very significant amounts.
expert opinion
An expert opinion may be necessary in many cases, and without it it will not be possible to win the claim. An expert opinion may cost between a few thousand and a much more significant amount that exceeds ten thousand shekels.
The cost of the opinion depends, among other things, on the party giving the opinion. There is a big difference between having an expert opinion in a situation where an appraiser gives such an opinion and a professor of medicine.
Current expenses for managing a tort claim
The customer 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 by registered mail), sometimes printing costs if there is an unusual amount of material to be printed, fuel/travel costs for the lawyer ( Not all lawyers charge this, especially if the amounts are negligible, but these expenses are not part of the fee and the lawyer may charge them).
Most of the time, these expenses in the framework of a tort claim do not reach significant amounts, but nevertheless they cannot be ignored.
Common types of tort claims
There are many different types of tort claims but they can mostly be divided into the following categories (of course this is a non-exhaustive list).
Tort claim for bodily injury
This category includes all tort claims that deal with medical damages or injuries to the body (for example: professional negligence of doctors or a car accident in which an injury to a person's body or a dog bite was caused). The court fee in these cases is different from the fee specified earlier.
Tort claim for damage to property
This category includes all tort claims that deal with damages 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 emotional distress . It is important to familiarize yourself with the definition of "damage" in the Tort Ordinance, which states:
"damage" – loss of life, loss of property,comfort, physical well-being or goodwill, or loss thereof,and any loss or loss similar to these;
According to this definition, a defamation lawyer who files a defamation claim also operates on the tortious level and files 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 according to this Ordinance (tort claims can also be filed by virtue of additional legislation).
Tort claim for assault
Section 23 of the Tort Ordinance states as follows:
23. (a) Assault is the use of force of any kind, and intentionally, against a person's body by hitting, touching, moving or in any other way, either directly or indirectly, without the person's consent or with his consent obtained fraudulently, as well as an attempt or threat, on By an act or by a movement, to use said force against a person's body, when the attempter or the threatener causes the person to assume, for reasonable reasons, that he indeed has at that time the intention and the ability to carry out his plan.
Tort claim for false imprisonment
Section 26 of the Tort Ordinance states as follows:
26. Arbitrary imprisonment is the denial of a person's freedom, a complete and unlawful denial, for any length of time, by physical means or by appearing as someone in authority.
Tort claim for trespass
You can file a tort claim for trespassing on real estate or movable property.
In relation to real estate, Article 29 of the Tort Ordinance states as follows:
29. Trespassing on real estate is entering the real estate illegally, or damaging or interfering with the real estate by a person illegally;But no claimant can be compensated for trespassing on real estate unless he suffered pecuniary damage as a result.
In relation to movable property, Article 31 of the Tort Ordinance states as follows:
31. Trespassing in movable property is unlawfully taking goods from the possession of another person, or violently interfering with them while they are in the possession of another person;But no claimant can be compensated for trespassing in movable property unless he suffered financial damage as a result.
Tort claim for negligence
The sections relevant to this tort are sections 35-36 of the Tort Ordinance.
Article 35 states as follows:
35. A person did an act that a reasonable and prudent person would not have done under the same circumstances, or did not do an act that a reasonable and prudent person would have done under the same circumstances, or in a certain trade did not use the skill, or did not take a measure of caution, that a reasonable and prudent person capable of acting in that trade would have used or takes the same circumstances – after all, this is negligence;
And if he is negligent as mentioned in relation to another person, for whom he has an obligation under the same circumstances not to behave as he did, then this is negligence, and the one who causes damage to another through his negligence commits a wrong.
Article 36 states as follows:
36. The duty mentioned in section 35 is imposed on every person and on the owner of any property, whenever a reasonable person should have seen in advance that in the ordinary course of things they might be harmed by an act or omission specified in that section.
Tort claim for dog bite
Section 41A of the Tort Ordinance states as follows:
41a.In a lawsuit due to bodily harm caused by a dog, the owner of the dog or the person who keeps the dog on a permanent basis (hereinafter – the owner) must compensate the injured party, and there is no issue as to whether or not there was negligence on the part of the owner.
Tort claim for public nuisance or private nuisance
Sections 42, 44 of the Tort Ordinance deal with the issue of nuisance to the public or nuisance to an individual.
Public nuisance:
42. A nuisance to the public is an act that is unlawful or fails to fulfill a legal obligation, when the act or omission endangers the life, safety, health, property or comfort of the public, or is an obstacle for the public to use a right from the general rights.
A nuisance to an individual:
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 way that actually interferes with the reasonable use of another person's land or reasonable enjoyment of it considering their location and nature;But a person will not be compensated for a nuisance to an individual unless he suffered damage from it.
Tort claim for deception or fraud or falsehood on the part of the offender
These matters are regulated in sections 56, 58 of the Tort Ordinance.
Scam:
56. Fraud is a false presentation of a fact, knowing it to be false or not believing in its truth or out of recklessness, when the presenter does not care whether it is true or false, and with the intention that the one misled by the presentation will act on it;However, a claim should not be filed for the aforementioned representation, unless it was intended to mislead the claimant, indeed it did mislead him, and the claimant acted on it and thereby suffered financial damage.
An offensive lie:
58. (a) An injurious lie is the malicious publication of a false statement, either orally or otherwise, regarding a person's business, his craft, his profession, or his goods or property rights;But no compensation shall be paid to a person for such publication, unless he has suffered financial loss as a result.
Claim for damages for the tort of accessibility
Section 60 of the Tort Ordinance states as follows:
60. Access is the opening or continuation of a procedure that was initiated – in fact, maliciously, and without a reasonable and plausible reason – against a person, in crimes or in bankruptcy or liquidation, and the procedure damaged his credit or good name or endangered his freedom, and ended in his favor, if the procedure could end so;But no lawsuit will be filed against a person for access just because he gave information to a competent authority that started proceedings.
Tort claim for breach of contract
Section 62 of the Tort Ordinance states as follows:
62. (a) Whoever knowingly and without sufficient justification causes a person to break alegally binding contract between him and a third person, he commits a wrong against that third person, but the third person cannot be compensated for this wrong unless he suffered pecuniary damage as a result.
Tort claim for breach of statutory duty
Section 63 of the Tort Ordinance states as follows:
63. (a) A violator of a statutory obligation is a person who does not fulfill an obligation imposed on him by any legislation – with the exception of this ordinance – and the legislation, according to its correct interpretation, is intended for the benefit or protection of another person, and the violation caused that person damage of the type or nature of the damage we are referring to the enactment;However, the other person is not entitled due to the violation to the remedy specified in this ordinance, if the legislation, according to its correct interpretation, intended to issue this remedy.
(b) For the purpose of this section, an enactment is considered as if it was made for the benefit or protection of a certain person, if according to its correct interpretation it is intended for the benefit or protection of that certain person or for the benefit or protection of people in general or of people of the type or group with which such a person is included.
In conclusion
A tort claim is not a simple claim and must be prepared accordingly. It is very important to collect the appropriate evidence because without it you may find that you have conducted an idle procedure that initially had low chances of success.
Before filing a tort claim, it is also very important to know all the expected expenses for the plaintiff, especially the costs of an expert opinion, which may reach extremely high amounts.
In order to file a tort claim, it is important to contact a tort lawyer who has previously filed claims of the same type you want to file, and won them. Sometimes the lawyer's experience plays a decisive role in managing a tort claim.
