The Government's Tort Liability in Dealing with Pandemics

By: Ben Segal

The outbreak of Covid-19 has resulted in some extreme actions being taken by various governments. Author Tomas Pueyo describes one model of governance as "The Hammer and the Dance", the hammer is an extreme measure such as a lockdown, and the subsequent period of living with the pandemic is the dance.

The hammer is designed to quickly reduce the spread of a contagion (e.g., minimizing the R0) and also reduce pressure on various social support systems like hospitals. Like a hammer, it is a blunt tool. During the subsequent dance when the hammer is retracted, governments aim to avoid additional infections by more surgical tools like curfews, contact tracing and quarantines.

Often, making it successfully through "The Dance" requires continuous epidemiologic investigations, data analysis and clear communication with the public. What if government and its extensions fail to lead the public through this period of time? Who will it be liable for the public's damages?

According to section 3 of the Israeli Civil Torts Act, the State of Israel cannot be held liability by virtue of acts or omissions committed by it. However, it will be held liable according to section 35 of the Israeli Torts Ordinance for actual negligent acts. According to the section, every person or property owner can be liable for actions they made during the usual course of events ,if they should have anticipated the damaging outcomes of their actions. The crucial decisions that governmental offices are taking these days hold great potential for health and financial damages and so the government ought to be careful both when wielding the hammer and when conducting the dance.

Imagine a supermarket manager who lost his job due to the government's decision to lockdown Bnei Brak. In the best-case scenario, the manager and his family will have to decrease their standard of living, but in the worst-case scenario, they might lose their house be thrown to the streets.

The courts will have to decide whether locking down the entire city was a predictable and proximate cause of the direct loses to the manager.

In the meantime, the State of Israel has set regulation to assist that citizens that have lost their job due to the pandemic, providing them with extended and expanded unemployment benefits which could help them in avoiding losing their homes to begin with. However, there is a downside to government intervention: the manager now has no incentive to find a different job until he gets cut off of his unemployment benefits and the rest of the workforce has to bear his burden, especially if the only other jobs available are lower paying than his benefits.

Some might say that this is a catch 22, with the government finding itself liable no matter its decisions. However, perhaps just like the role of tort law is to direct the public's behavior, it should also be a tool in directing the governments' behavior, incentivizing it to utilize its resources to set right regulations, and not the other way around.