Some eight months passed before Simha’s case was set for trial. At 9.00 a.m. on the appointed day, Justice Ehood Morag took his seat on the Bench. His quick glance at Simha’s wheelchair confirmed that Morag had read his papers and, in all probability, had made copious notes summarising the pleadings and the facts.
Both Boaz and I knew him well from our days at the Law School. Morag, who held an Adjunct Lectureship, had taught the course on the Law of Torts and some elective subjects. His brilliant mind had gained him universal respect just as his sharp tongue had antagonised students unable to keep up with him. Boaz and I had had no problems in this regard: each of us had been a star performer. Boaz, though, had found Morag too mercurial, too unpredictable, as a judge. I, in contrast, admired Morag’s intellectual feats on the Bench.
“Seems a pretty clear case,” said Morag, pushing his file away from him. “The defendants admit liability but plead contributory negligence and contest the amount claimed by way of damages for pain, sufferings and loss of pleasure of life.”
“I appear for the plaintiff Your Honour. My Learned Friend, Mr. Berger, appears for the defendants.”
“I take it the parties have made every effort to settle?” said Morag.
“We have, You Honour,” confirmed Boaz. “It is a matter of regrets to both of us that, even so, the case had to be put down for trial.”
“Could I possibly assist?” asked Morag. Usually, Morag would have proceeded straight to business. His offer was, thus, unexpected. Was he, too, driven to sympathy by the extent of the injuries including the one not pleaded? Having taken in our positive reaction to his offer, Morag concluded: “In that case, may I see counsel in chambers?”
Accepting Morag’s invitation to sit down and drop formalities, Boaz gave a balanced description of our attempts to settle on a pension. He conceded we had made a fair offer and that it would be unrealistic to expect the defendants to improve it any further.
“What’s the problem then?” asked Morag with a touch of impatience. “Surely, the plaintiff must be aware that in the present economic climate such an indexed pension and guaranteed employment are more than what most of us can expect?”
“He knows this, Judge,” conceded Boaz, whilst I nodded to provide moral support.
“So, what’s the problem?”
“The plaintiff’s son, Shimon Balani, is keen on a lump sum; and he calls the shots!”
“Haven’t you talked to him?”
“Both I and the Boss, Mr. Silver! We arranged a last-ditch meeting between them and defendants’ counsel.”
“Then, what can I do?” asked the Judge.
Boaz let his unease show. “He may listen if the words come …”
“… from the Bench” grinned Morag. “What do you think, Berger?”
“Members of his community hold ‘authority’ in high regard, Judge. It is a matter of upbringing. I believe a last attempt – coming from you – might carry the day.”
“It’s worth a try,” agreed Morag. “After all, a Judge’s function is to do justice – not just to apply the law blindly according to its letter – often an outdated letter at that! I’ll tell the orderly to bring in the Balanis and that fellow from Solbon.”
Shimon wheeled his father into the Chambers. A sturdy, good looking, youth in his mid twenties, he was awed by the solemn surroundings and appeared ill at ease. Simha, in contrast, remained his urbane self, looking at the Judge with respect but without trepidation. Malka Balani sought refuge in a remote corner of the room. Solbon’s employee, a middle aged man with grey hair and piercing eyes, who had but one arm, took a seat near me. A smile of recognition indicated he knew Boaz. When all of us had settled down, Morag proceeded straight to the point.
“Counsel tell me there has been a discussion about an indexed pension and guaranteed light employment. Acceptance or rejection rests with the parties but – in my eyes – it is a fine offer. Why doesn’t it appeal to you, Mr. Balani?”
“Oh, it is a fair offer, Your Honour. But my son, Shimon, thinks a lump sum is better for us. His idea is to use the money to start a business.”
“That’s not the object of compensation, Mr. Balani,” explained Morag. “What the law wants to achieve is, first, to compensate you for your sufferings and, secondly, to ensure that you have the means for a standard of life comparable to what you had before the accident.”
“Shimon intends to give me more than this if his business goes well!”
“My father will sit at the head of our table and enjoy a lifestyle befitting a king” volunteered Shimon, overcoming his initial unease.
“And if your business does not succeed?” asked the Judge.
“I’ll devote my life to looking after Dad!” Shimon spoke with conviction, leaving an impact on all of us.
“But would it not be simpler to accept the proposed pension? It is risk free and gives your father an iron clad security for the future, at least as far as finance is concerned?”
Shimon fidgeted. Malka Balani avoided Morag’s searching glance. It was clear she did not wish to be dragged into the discussion. To my disappointment, Simha brought the matter to an end: “You are very kind, Your Honour. We are grateful. But I do believe in my son!”
“In the ultimate,” Morag responded without manifesting any feelings, “the decision is yours. The law entitles you to a lump sum. Once the defendants pay it, their liability to you is discharged: even if your sufferings are exacerbated at a future point of time!”
“Can my husband perhaps think it over?” Malka Balani assumed the courage to ask.
“Very well,” said Morag. “In the meantime, I can hear arguments about the two points in issue: contributory negligence and the measure of damages. As there is agreement on the medical evidence, I take it the plaintiff is the only witness.”
“Most of the facts are ‘common ground’, Judge,” said Boaz.
“we can return to Court to hear those still in issue. If the plaintiff decides to accept the pension, I’ll deliver judgment on the basis of the settlement.”
“That will be a satisfactory way to proceed” I agreed. Boaz nodded.
The formal hearing was anticlimactic. As all relevant facts had been affirmed in Simha’s responses to the ‘interrogatories’ – the questions put to him before the trial – my cross- examination took less than half an hour. Boaz did not bother to re-examine. The arguments, too, were brief and to the point. Morag observed that the claim far exceeded the maximum award that could be made by him under the current Practice Direction. The final award would, accordingly, have to be determined by the Court of Appeal.
We spent the rest of the morning session on arguing the contributory negligence point. Morag made no secret of his dissatisfaction with the prevailing state of the law.
“It galls me to have to treat the good Samaritan at par with a careless person, who precipitates in an accident by a foolish act, like crossing a road although he sees a car approaching at high speed. Can you compare a person who risks his own safety for the sake of another, with somebody who throws caution aside because he is in a hurry?”
“This is why we believe that, in the instant case, the defendants ought to drop the plea of contributory negligence,” agreed Boaz.
“What do you say, Mr. Berger?”
“Your Honour’s analysis exposes the need for reform. At this stage, though, the law is as already stated. It is, accordingly, binding on us,” I said unhappily.
“But the law as is discourages people from doing what many of us regard a civic duty, like risking life to save a drowning child! Is that acceptable?”
“I’m not suggesting it is a satisfactory doctrine, Your Honour,” I said, noting a quick exchange of glances between Morag, Boaz and Solbon’s Degan. “If the issue arose in a debate of the Philosophical Society I would, perhaps, take a different view …”.
“But here, of course, you have to look after your clients’ interests, unless they decide to waive the defence. Well, and what are your thoughts as to the extent of the contribution?”
“My Learned Friend and I have discussed the point at length. Any figure between 10 and 20 percent appears reasonable.”
Once again, Morag turned to the file and to his notes. Satisfied that all points had been covered, he suggested we adjourn till 2.30p.m. He should be able to deliver judgment as soon as the plaintiff had communicated his decision about the proposed pension.
The Balanis withdrew discreetly. Having exchanged civilities with Boaz and myself, Degan went back to his office at Solbon to discuss the developments with his associates. Left on our own, Boaz and I proceeded in the direction of David Mizrachi’s eatery. Both of us felt the need for a good lunch. Initially, Boaz told me the news about his family. His wife, Miri, had been promoted to the post of Vice-Principal of the School, his daughter got excellent grades in Hebrew Literature, Composition and History and his son – my favourite – was showing signs of getting over his asthma. For more than three months he had not had an attack.
“That’s excellent news, Boaz. I only hope he doesn’t overdo things.”
“Miri keeps a watchful eye over him,” said Boaz, who doted on his wife. “She really knows how to handle him!”
“He’s a lucky boy,” I countered, brooding over my own childhood which had been largely ruined by the same disease.
Over coffee Boaz turned back to our case. Grudgingly, he conceded that Ehood Morag had handled the matter well. He had not expected an old stickler to the rules like Morag to possess a humane alter ego.
“But do you think Shimon will give way?” I asked. “The decision rests with him!”
“He was impressed by what Morag told them. But I fear it may be too late for him to double back!”
“What makes you think that?”
“Something he said after we left the Chambers. I suspect he has already committed the funds to a project planned with some friends!”
Boaz’s surmise appeared well founded. When we got back to the court house, Simha advised us they had decided to press for a lump sum. He appreciated our efforts but, all in all, concluded a large amount in cash was what the family needed.
Ehood Morag did not display any feelings. He granted Simha the largest amount he was able to award but reduced it by apportioning 15 per cent to Simha’s contributory negligence. He said, specifically, that he felt bound to follow precedent but that the Court of Appeal would have the opportunity to review the law in point.
As we walked back, Boaz concluded: “Between ourselves, I should not be surprised if Solbon decided to drop the contributory negligence point at the appeal.”
“What makes you think that? They always insist Rotem plead it in industrial accidents.”
“I know. But I suspect Amnon Degan will have a say and I know his attitude.”
“I noticed you knew him,” I nodded. “How come?”
“He was my superior in the Army. He was in regular service before he lost his arm.”
“Actually, how did this happen?”
“His troupe was ambushed and one of his men was shot in the belly. Amnon Dagan deigned to send someone else in. He got the chap out but, as he scrambled to safety, a bullet shattered his arm just above the elbow. They had to amputate.”
“Does Morag know this?” I prompted.
“Morag chaired the ensuing inquest. He commended Dagan’s courage and selflessness.”
“This throws light on Morag’s blunt words this morning. Still, he meant what he said. Make no mistake!”