## Facts

- Michael Ettinger, a 12-year-old boy, died after falling into an unfenced pit at an archaeological site near a playground in Jerusalem.
- The Estate of Ettinger and family members sued the Company for the Reconstruction and Development of the Jewish Quarter (and related defendants) in tort, alleging responsibility for the dangerous condition that caused Michael’s death.
- The plaintiffs sought compensatory damages and, as part of the damages action, requested punitive (exemplary) damages.
- The District Court awarded compensatory damages but refused to recognize damages for the deceased’s lost earning capacity in the “lost years” (the years of working life lost because of the shortened lifespan) and denied punitive damages.
- The estate appealed to the Supreme Court of Israel (CA 140/00), challenging the denial of “lost years” damages and punitive damages.

## Issues

1. Whether Israeli tort law permits recovery for loss of earning capacity in the “lost years” when a tort shortens a victim’s life expectancy or causes death, and whether that claim passes to the deceased’s estate.
2. If “lost years” damages are recoverable by an estate, how should the law prevent double recovery where dependants also recover for loss of support during the same period.
3. Whether punitive damages should be awarded on these facts, and whether the Court needed to decide the broader question of judicial authority to award punitive damages in tort.

## Decision

- The Supreme Court allowed the appeal in part and recognized “lost years” damages as a compensable head of damage in Israeli tort law.
- The Court held that when a tort reduces life expectancy, the victim suffers a compensable loss of earning capacity for the years of life and work taken away; if the victim dies, the claim survives and may be pursued by the estate.
- To avoid double payment for the same economic loss, the Court held that amounts awarded to dependants for loss of support during the “lost years” must be deducted from the estate’s recovery for lost earning capacity during those same years.
- The Court declined to award punitive damages and left unresolved, as a general matter, whether Israeli courts possess a free-standing power to award punitive damages in tort, because the facts did not justify such an award in any event.
- The matter was remitted for calculation/adjustment of damages consistent with the recognition of “lost years” damages; the punitive-damages claim was rejected.

## Legal Principles

- A tort that shortens a person’s life can cause a compensable financial injury measured by loss of earning capacity for the years the person would otherwise have lived and worked (“lost years”).
- When death results, the victim’s claim for “lost years” loss does not vanish; it may pass to the estate under survival principles.
- Where dependants are compensated for loss of support during the “lost years,” that recovery must be set off against the estate’s “lost years” award to prevent double liability for the same earnings stream.
- The Court may develop the law of damages in tort without waiting for legislative action, including by revisiting and overruling prior case law that had required statutory authorization.
- Punitive damages were not awarded; the Court did not decide the general availability of punitive damages in tort where the case can be resolved on narrower grounds.

## Conclusion

Estate of Ettinger holds that Israeli tort law recognizes damages for loss of earning capacity in the “lost years” and that this claim may be pursued by a deceased victim’s estate, subject to deductions where dependants also recover support for the same period; the Supreme Court partially reversed and remanded for recalculation of damages while rejecting punitive damages and declining to resolve the broader punitive-damages power question.


Estate of Ettinger v. Company for the Reconstruction and Development of the Jewish Quarter, CA 140/00, 68(4) PD 486 (2004)