אשם יוצר אחריות ואשם תורם: תאוריה ופסיקה

In a number of recent decisions, the Israeli Supreme Court has considered the application of the negligence standard for injurers(“liability-creating fault”) and for victims (“contributory fault”). In view of these decisions, this Essay addresses two issues, which despite their importance, have not yet received significant attention. The first pertains to two-sided accidents – cases in which each party is both an injurer and a victim. We argue that the Court’s approach to the relationship between the two forms of negligence raises a number of difficulties and is in contention with traditional tort principles. The second issue pertains to cases in which the parties act sequentially – a negligent injurer initially creates an undue risk and then the victim fails to take precautions that could counter that risk. The case law reveals two competing approaches toward victims’ liability in such circumstances. We contend that the desirable approach is non-uniform, and we analyze its underlying principles.