האומנם "אין שיפוי - אין ניכוי"? - פרשת יונה נ' כלל (1659/21)

Quite often, damage caused to a victim by a liable tortfeasor is partially or fully remedied through benefits provided by other systems of compensation and repair. Basically, there are three major ways by which such situations are regulated. One way is to allow the victim to collect both full tort compensation and the full collateral benefits (accumulation). Another way is to deduct these benefits from the victim’s entitlement to compensation and from the tortfeasor’s tort liability (reduction). A third way is to reduce the victims' entitlement,but to grant the benefit provider a right to reimbursement of the benefits from the tortfeasor (reduction+indemnity). As a rule, the third way is preferable and for good reason. The other ways (accumulation and reduction) are exceptions, which require justification and are usually specified by legislation. In the Yona v. Clal case, the victim was entitled to tort compensation and to benefits provided by the state. Since the state had no right of indemnity,and in the absence of clear legislative guidance, the court had to choose between accumulation, which leads to over-compensation from the victim’s point of view, and reduction, which leads to reduced liability from the tortfeasor’s point of view. Judges of three instances differed on the issue. Finally, the scale tilted toward accumulation.In this article we argue that given the core rule of tort compensation -“restoration to the original position” – the appropriate course would have been reduction rather than accumulation. By deciding otherwise and in favor of over-compensation, the decision deviated from this leading rule and undermined it without sufficient justification. It also applied considerations of fault-based liability to a regime of strict liability, thereby ignoring loss-spreading considerations.