Boaz and myself wore gowns: a remnant of the colonial period. The judges had by then discarded the archaic attire. They wore a black silk jacket and a matching discreet tie. Wigs were no longer in use.
As I entered the courtroom accompanied by Rachel and a young employee of Rotem, Zvi Fischer stepped over and shook my hand.
“I’ve heard you are back, Eli. I hope you liked Oxford.”
“I did, Zvi,” I replied slightly perplexed. On all previous occasions, Fischer and I had remained on formal terms.
“And how do you like Singapore?”
“It’s a nice PLACE. Actually, the government has launched public housing projects all over the town. They operate on a system akin to our joint ownership apartment buildings. Your designs would be just right.”
“I’d love to see these developments one day,” he told me and returned to his side of the room.
Shortly thereafter, the usher announced the Judge was about to arrive. The few persons present rose to their feet and bowed to. Morag returned our greeting graciously and took his seat on the bench. As I looked at him, I felt grateful to Boaz for his warning. Ehud Morag’s presence and keen expression used to command the respect of all in attendance. Even now his demeanour confirmed that he remained the master of his court. But the lustre in his eyes was gone. So was the eternal twinkle. I was facing an aging man.
Before the formal hearing started, Boaz applied that the case be heard in two parts. When I agreed, Morag granted the application. Boaz then introduced his case and as called Fischer as his first witness. To my surprise, Fischer proceeded slowly and with some hesitation.
Boaz’s examination-in-chief was brief. He took Fischer through the main events but, I noticed, did not touch on facts that had not been spelt out in Fischer’s original report on the accident.
Fischer stuck to his original story: he had arrived well after 8.00 a.m. and proceeded directly to the accident site. Boaz did not refer to the time of Fischer’s arrival or to the time of the accident. He was keen to close the examination-in-chief as quickly as possible. As soon as he resumed his seat, I stood up to cross-examine.
“You are one of Tel-Aviv’s renowned designer of factories and joint ownership housing, Mr Fischer?”
“I believe I am well known in my profession,” retorted Fischer with pomp.
“Please answer ‘yes’ or ‘no’, Mr Fischer,” interceded Boaz.
“In that case: yes, I am.”
“You are also an experienced surveyor of work on building sites?”
“Well, yes.”
“How many sites did you survey in, say, the last six months?”
“I don’t see what this has got to do with this case,” Fischer flared up.
“Kindly answer the question” instructed Morag, looking at Fischer narrowly.
“I can’t recall!”
“Three?” asked Morag.
“More than that.”
“Twenty?”
“Not so many!”
“So, you can’t recall how many sites you inspected during the last six months, but you are certain the number is somewhere between 3 and 20?”
“Quite so,” replied Fischer testily.
“How many times did you inspect the current building site?” asked Morag unperturbed but irked.
“Two or three, Your Honour,” replied a much deflated Fischer.
“You inspected the progress made in the construction of the 1st floor?”
“I did.”
“On these occasions, was the accident-plank there?” persisted Morag, who had by then taken over my role.
“I don’t know! I mean: I have no idea.”
“And on the day of the accident, did you expect to find the plank?”
“Of course not.”
“It wasn’t supposed to be there, was it?”
“No, it wasn’t.”
“Did you ask what it was doing there?”
“No, I didn’t!”
“You just stepped on it?”
“I did, rather.”
“Sorry for butting in Mr. Berger. I think you better continue.”
“Just a question or two, Your Honour. Mr. Fischer, the scaffolding was erected according to standard building regulations?”
“It was.”
“And you have a great deal of experience in inspecting sites under construction.”
“I’ve already said so.”
“No further questions, Your Honour. But, of course, my Learned Colleague may wish to recall the witness if the case proceeded to the next part.”
“Precisely,” nodded Morag.
Boaz advised that he was not calling any further witnesses at this stage. I, in turn, decided not to introduce evidence. Under standard civil procedure, Boaz was supposed to address the court forthwith. Keeping with the philosophy of Jacob Keren’s law firm, I waived my right to have the last word.
“Then, you have to address me straight away,” pointed out Morag.
“I am ready,” I assured him.
“So am I,” grinned Boaz.
“Very well then,” said Morag smiling at both of us benignly. We were about to address him on one of his pet subjects: the difficult legal issue he had discussed in his role as our teacher. Morag looked forward to the occasion.
My address was brief. A landlord did owe a duty of care to people using the building. He had to maintain the premises so as not to cause injury to a reasonable man. Such a person should not be expected to dodge traps. In particular, no ‘ambush’ should be placed in a reasonable man’s way. In the instant case, though, it was impossible to invoke the test based on the expectations of a reasonable man. Such a man had no place on a scaffolding. He ought to find less hazardous pastimes, for instance, relaxing in front of his television set.
“But surely, you must not put a chair in his way or ask him to walk over a dangerous surface like a wet floor?” asked Morag.
“Of course not. And you must not booby trap the terminal. These duties are owed to any person found on the premises or in the television room. And, Your Honour, I submit this is the only duty owed by a developer to a technical surveyor, who is a construction works expert.”
“But wasn’t the plank a trap?”
“The plaintiff conceded that the plank should not have been there. He himself is the very expert to establish the point. Instead, he stepped on the plank although he knew that was not part of the scaffolding. Why then did he step on it? There is no evidence to establish that, seen from the plaintiff’s point of view, the plank was a trap.”
Boaz’s reply was even shorter than my address. He insisted that Fischer, had been asked by the defendants to inspect the progress and standards of the factory under construction. In consequence, they owed him the duty to make the site safe for any ‘reasonable man’. How could a reasonable man be expected to examine the safety of every plank on a scaffolding? By its very nature, such an object was a trap.
“Even when the victim of the accident is an expert on buildings and scaffoldings?”
“That is my submission. Further, a reasonable man cannot be expected to anticipate such a hurdle. Here the plaintiff was in the position of a ‘reasonable man’ notwithstanding his expertise.”
“Notwithstanding his knowledge that the plank ought not to be there?”
“That, Your Honour, is our submission.” Boaz then referred to the authorities in point.
“Two fine addresses, if I may say so,” observed Morag. He was beaming at his two one- time students.
“Both are derived from what my Learned Friend and I were taught by a fine teacher,” I told the Judge. Boaz nodded his consent.
“I need some 15 minutes to collect my thoughts. I’ll deliver an ex tempore judgment as soon as we resume.”
All present rose to their feet and bowed. Morag nodded and withdrew to his chambers. When he resumed his seat on the Bench, he dismissed the claim. By and large, he accepted my arguments. But he added two points. First, Fischer had not established that the plank was a trap. In other words, he had failed to prove a vital point of his case. Secondly, the ‘reasonable man’ test was of no help. If a ‘reasonable man’ were to find himself on a scaffolding, he would take extra care when he sought to depart. It was common ground that the accident took place when the plank gave way. But it was unclear why the plaintiff stepped on it when he knew the plank should not have been there.
“The parties may wish to address me on the issue of costs. Further, the case turned on a difficult issue. Please let me know in case you require Written Grounds of Judgment. The plaintiff may, of course, wish to take the matter further. I’ll call a break now. Please be back at 2.30 p.m.”
“Can we have an indication of Your Honour’s thoughts respecting contributory negligence? The issue could arise if one applied the ‘reasonable man’ test,” asked Boaz.
“The evidence is too scanty for a determination or even a firm indication. Off the cuff, I would anticipate a finding of about 60 per cent against the plaintiff. In my judgment, though, the ‘reasonable man’ test is inapplicable. Further, I wonder if the test has been misguided right from its inception. Has any one of you ever met a ‘reasonable man’?”