Estate of Shelmovitz v City of Tel Aviv (2014) H&FLR 2014-44

Estate of the late David Shelmovitz & Ors v City of Tel Aviv & Ors (2014) H&FLR 2014-44

Tel Aviv Magistrates Court (Israel)

23 July 2014

Coram: Klein J.

Appearing for the Plaintiffs: Not known
Appearing for the Defendants: Not known

Catchwords: Israel – half-marathon – dehydration – death – negligence – fitness to compete

Facts: In 2011 Mr David Shelmovitz competed in a half-marathon organized by the first defendant (City of Tel Aviv). The first defendant engaged the second defendant (Hands Promotional Marketing Ltd) to manage the event. The second defendant was insured by the third defendant (Harel Insurance Co. Ltd). Under the system set up by the defendants, race entrants were required to complete an online declaration that they were medically certified as fit to compete, but were not required to produce the certificate itself.  The deceased declared that he was certified fit, despite not being so.

During the race the 42-year-old Shelmovitz developed symptoms of heatstroke but continued to run. He collapsed and was hospitalized for heatstroke and dehydration. Some 38 minutes elapsed between when he collapsed and when he reached intensive care. Three days after collapsing he died in hospital from liver damage.

His family brought proceedings against the defendants. It was alleged that they had been negligent in not requiring production of a medical certificate, in allowing excessive delay before the deceased was taken to hospital, and in not having facilities available on the course to cool him directly after the collapse.

The defendants responded that medical certificates are not required in any jurisdiction to compete in a half-marathon, and would impose an unreasonable and excessive burden on race organizers. They contended that adequate care was provided after the deceased collapsed. They also contended that any negligence on their part had not caused harm to the defendant because there was no reason to consider that his doctor would not have certified him as fit to compete, and had previously run a similar distance in a gymnasium. They also alleged contributory negligence against the deceased.

Held: Upholding the claim, that –

1.  In order to establish negligence, the plaintiff must show that the defendant owed both a conceptual and a concrete duty of care, that the duty was breached, and the breach lead to the harm alleged. Given the relationship between the race organizers and the participants, and the competitive setting, such a duty existed. The defendants conceded that a concrete duty of care existed.

Vaknin v Bet Shemesh Local Council (1983) 37(i) P.D. 113, followed.

2.  There was a duty on the defendants to ensure race participants were in fact medically certified.  The defendants had breached that duty.  Requiring entrants to click the “I agree” button is not sufficient to bring to their awareness any risk to their health.

3. The defendants were negligent in not having available a means of cooling the deceased after his collapse, given that the cost of doing so was outweighed by the danger to a runner suffering heatstroke and dehydration*.

4. The defendants’ negligence was found on factual grounds to have lead to Mr Shelmovitz’s death. His Honour noted that the deceased’s running the same distance in a gym was not enough to conclude that he was fit to run in an outdoor event. Fault as between the defendants was apportioned 30% to the first defendant and 70% to the second and third defendants.

5. In assessing contributory negligence, the court must consider whether the plaintiff fell short of the actions of a reasonable person and (if so) to compare the actions of the plaintiff and defendant and assess what proportion of fault was borne by each. In the case, the deceased had been negligent by claiming falsely to have had a medical certificate and by continuing to run after developing symptoms of heatstroke. He was found to have contributed 30% to his own harm.

Alan Shore v State of Israel, IsrSC not (1) 299 and Levi Sternberg v Bnei Brak Municipality, IsrSC Meg (3) 343, applied.

6. His Honour assessed damages at NIS890,000 (US$257,591.62 / A$277,988).

Judgment

The court’s judgment is available here**.   Media reports suggest an appeal will be lodged.

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* Cf Caledonian Collieries Ltd v Speirs, 97 CLR 202 (Austl., 1957)

** I have used a Google translation for the purposes of this report and (due to the sometimes questionable translation) have had to make some inferences as to meaning.  I have been assisted by reports in the Jerusalem Post of 29 July 2014, on reports here and here on the Israeli running website Shvoong, on this report on the News1 website and on this report on the ynet website