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Causation, Contributory Fault and Contributory Conduct

Published online by Cambridge University Press:  12 February 2016

Izhak Englard
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Type
Cases
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Israel Law Review , Volume 4 , Issue 2 , April 1969 , pp. 273 - 285
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1969

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References

1 Sec. 55B of the original Ordinance.

2 The doubt arises from the fact that under the doctrine of equivalence of conditions there can be no occurrence due to a single cause, but only to a whole set of conditions. On this problem and on additional grounds for our conclusions, see Tedeschi, , Englard, , Barak, , Cheshin, , Law of Torts, sec. 122 (at present in Hebrew).Google Scholar

3 Mordokowitch v. Menahem (1957) 11 P.D. 602, 604, 606.

4 Solel Boneh v. Nazia (1958) 12 P.D. 619, 622. The court did not, in dealing with this case, sufficiently distinguish between the duty of care and the causal relationship.

5 Municipality of Nathanya v. Weiss (1962) 16 P.D. 853, 862.

6 Ibid. Compare a similar trend, in connection with the principle of the workman's contributory fault, below, text at n. 13a.

7 Cf. Hart, and Honoré, , Causation in the Law (1959) 133Google Scholarsq.

8 pp. 324 ff., in the President's judgment.

9 The causal nexus is not always negated; when the duty imposed upon a person is the very prevention of such deliberate acts, their occurrence does not release him. For instance, a patient suffers from mental depression and is therefore kept in a special institution. A self-inflicted injury by such a patient, although voluntary, will not break the chain of causation. Cf. State of Israel v. Parshchik (1960) 14 P.D. 2007, and see Fleming, , “Liability for Suicide” 31 A.L.J. 587.Google Scholar

10 The President accepts English law in this connection, and does not refer in his decision to the local provision. See below, p. 283.

11 Sec. 55C in the original Ordinance.

12 Compare sec. 2(2) of the original Ordinance, which reads as follows:

“fault” means any act of any person, or failure by any person to do an act, or failure by any person to use proper skill or to take proper care—

(a) being an act or failure which, if damage is caused thereby, constitutes the civil wrong mentioned in section 50 or 55A, or any other civil wrong for which provision is made in this Ordinance.

(b) being an act or failure referred to in paragraph (a) or (b) of subsection (1) of section 50, which is the cause, or one of the causes, of damage to himself.

13 One of the problems arising by reduction of the principle of contributory fault to negligence is the following: Is the voluntary and intentional act of the person injured included in the concept? A similar question exists regarding the tort of negligence itself. On this entire question see Tedeschi, Englard, Barak, Cheshin, op. cit., sec. 139.

13a Cf. Kvutsat Binyan Ltd. v. Fogel (1959) 13 P.D. 864, 867.

14 In the case under discussion this possibility was again mentioned by the President, at p. 324.

15 That test was at the basis of the distribution of damage in the instant case. On this question generally, see also Payne, , “Reduction of Damages for Contributory Negligence” (1955) 18 M.L.R. 344CrossRefGoogle Scholar; Fleming, , Torts (3rd ed.) p. 240Google Scholaret seq.

16 Herman v. Tene Noga Dairies (1959) 13 P.D. 1057, 1063; “Elbar” Factory Ltd. v. Goldman (1965) (I) 19 P.D. 371, 381.

17 Sec. 55B(2)(a) in the original Ordinance.

18 Cf. Laharik v. Vangolowitch (1967) (II) 21 P.D. 656, 659.

19 See Hechter v. Ross (1956–57) 12 P.M. 13, 21–25.

20 See n. 13 above.

21 Compare the following cases in which the circumstances were similar: Rihani v. Tsidki (1961) 15 P.D. 159; Laharik v. Vangolowitch (1967) (II) 21 P.D. 656.

22 For the sake of accuracy it should be mentioned that this was not the assumption in the cases set out in the preceding note.

23 At 317 (Berinson J.); at 320 (the President).

24 See Tilgum & Co. v. Alter (1956) 10 P.D. 1896; Shuldenfrei v. Bart (1960) 14 P.D. 1661.

25 Winfield, , Tort (8th ed., London, 1967) 138–39, 650Google Scholar; Williams, G., “Liability for Independent Contractors” (1956) Camb. L. J. 180, 184.CrossRefGoogle ScholarCf. Barak, , “The Employer's Liability in Tort for the Acts of an Independent Contractor” (1964) 20 HaPraklit 355, 378–80.Google Scholar

26 winfield, ibid.

27 Demogue, Obligations, tome V, no. 1237; tome VI, no. 599; Mazeaud, & Tunc, , Traité théorique et pratique de la responsabilité civile, 5è ed., Vol. 1, nos. 103 (2)–103 (10) pp. 113–130.Google Scholar

28 Rosenzweig v. Rosenzweig Bakery etc. (1962) 16 P.D. 2548, 2550.

29 [1964] 2 All E.R. 452; [1964] 1 W.L.R. 768.

30 Sec. 55B (1) (ii) of the original Ordinance.

31 Sec. 55B(2)(a) of the original Ordinance.

32 But see below, the same mistake in the President's judgment.

33 [1959] 1 All E.R. 414.

34 [1964] 1 W.L.R. 768, 777 (per Lord Reid); 781 (per Lord Guest); 783–84 (per Lord Upjohn); cf. Donaghey v. Boulton & Paine Ltd. [1967] 3 W.L.R. 829, 842 (per Lord Reid).

35 Ibid. at 424.

36 Cf. Munkman, , Employer's Liability (5th ed. 1962) 507Google Scholarsq. And compare the objection to a similar argument raised in order to substantiate the traditional view of English common law that contributory negligence is a complete defence. Fleming, , The Law of Torts (3rd ed. 1965) 224.Google Scholar

36a Cf. Inter-Departmental Committee Report on Lister v. The Romford Ice and Cold Storage Co. Ltd., in Barrie, G.I., Sourcebook of Commercial Law (1967) 259Google Scholarsq.

37 There was apparently no labour contract in the Cinty case itself between the workman and one of the defendants (the Pirelli company) which was the occupier of the factory.

38 This, we think, is the interpretation of the Ginty case by the House of Lords. See in particular Lord Reid's speech in the Ross case (p. 777): “The question really is whose conduct caused the accident.” See also the other authorities in n. 34. And see Leach v. Standard Telephone & Cables [1966] 2 All E.R. 523, Munkman, op. cit. (6th ed. 1966) 520, 531, 599.

39 Cf. Ross v. Associated Portland etc., cit., at 784 (per Lord Upjohn); Donaghey v. Boulton & Paul Ltd., cit., at 838 (per Viscount Dilhorne), at 842 (per Lord Reid). Munkman, op. cit. (6th ed. 1966) 534.

40 The workman was in breach of duty to use the safety devices supplied to him, a duty laid down by sec. 74 of the Safety in Work Ordinance, 1946. The provision corresponds to that in sec. 143 of the Factories Act, 1961. See Leach v. Standard Telephone & Cables, cit.

41 We would therefore not have seen in the breach of statutory duty by the workman a necessary condition for the release of the employer.

42 Winfield, op. cit. 112 note 15.

43 Simon & Hollander v. Menashe (1963) 17 P.D. 449.

44 It should be stated that within the framework of the Ordinance there are additional limitations of liability, the most important of which derives from the rule as to remoteness of damage, in sec. 76(1) of the Ordinance.

45 Caswell v. Powell Duffryn Associated Collieries Ltd. [1940] A.C. 152, 179–80.

46 Cf. Williams, G., Joint Torts and Contributory Negligence (1951) sec. 79.Google Scholar

47 There is no doubt that in practice most cases of coextention of employer's and workman's fault involves the workman's recklessness, as it is otherwise difficult to imagine the reasons which led him not to use the safety devices supplied to him. See in this connection Munkman's critique, cit., supra n. 39.

48 Cf. Leach v. Standard Telephones & Cables, cit. 529: “Even though there may be no breach of duty by the employer until the machine is set in motion, the breach of duty is not the setting of the machine in motion but the failure to fence.”

49 Compare the arguments in the Leach case as dealt with by the judge at p. 530.