INTRODUCTION

OVERVIEW

The liability of public authorities in Israel falls under private law and is governed by the substantive and evidential rules that apply to other categories of tort liability. It is considered as such not only where the public authority functions in its private capacity (eg, as an owner of property, employer, operator of schools and hospitals) but also where it functions in its governmental capacity (eg, regulation, licensing and supervision, military and police activities, planning and zoning, taxation). In fact, a special statutory provision applies ‘a rule of equality’ under which public authorities are subjected to tort liability in the same way that any other corporate body is subjected to it. Accordingly, liability of public authorities, even when acting in their governmental capacity, is adjudicated by civil courts and not by administrative courts, and is usually imposed under negligence law. It is also governed by the same policy considerations that apply to other categories of tort liability.

On the other hand it should be acknowledged that tort liability for governmental activities has some unique features as these activities have no parallels in private activities: they are authorised or sanctioned by statutory provisions; they are also governed by administrative law and may be adjudicated before administrative courts; and some policy considerations apply differently to governmental activities than to private activities. So, arguably, tort liability for governmental activities is a kind of a ‘hybrid’ between ‘pure’ private tort liability and administrative liability. Actually, courts adjudicating tort claims against public authorities are in fact engaged in ‘a judicial review’ of these activities which supplements and magnifies the judicial review by administrative courts under administrative law. Therefore, although the substantial rules applied to private and governmental activities are the same, they may be applied in a different manner in each context.

As to its sources, tort liability of public authorities in Israel is basically the product of judge-made law in the sense that it has been developed by the courts which applied the general law of torts on the governmental activities of public authorities.