The Supreme Court, sitting as a Court of Civil Appeals, in a panel of President Yitzhak Amit, Justice Yael Willner, and Justice Gila Canfy-Steinitz, delivered a judgment on October 14, 2026, in CA 53385-07-26 and in CA 60054-09-26. The appellant in CA 53385-07-26 and the respondent in CA 60054-09-26 is The Phoenix Insurance Company Ltd., which was represented by Adv. Amichai Trozman. The respondent in CA 53385-07-26 and the appellant in CA 60054-09-26 was represented by Adv. Jonathan Davis. The subject matter of the proceeding in the appeal and cross-appeal is the judgment of the Jerusalem District Court, delivered by Judge S. Leibovitch, of June 21, 2026, in CC 2332-07-15, in which the appellant’s claim under the Road Accident Victims Compensation Law, 5735-1975 was accepted. At the focus of the proceeding stood the rate of disability and impairment of earning capacity of an injured person suffering from fibromyalgia syndrome, compensation for medical expenses and medical cannabis, and the rate of attorney fees in a claim under the Compensation Law. The appellant, born in 1993, was injured in two road accidents: the first on February 28, 2013, when he was 20 years old, during his compulsory military service in the IDF, and the second on March 23, 2016, when he was 23 years old. The liability of The Phoenix, insurer of the vehicle driven by the appellant, was not in dispute. The District Court appointed five court-appointed medical experts in the fields of orthopedics, neurology, psychiatry, pain, and rheumatology. In the fields of orthopedics and neurology, no permanent disability was established for the appellant. The psychiatry expert established a disability of 10% for adjustment disorder, and the pain expert established a disability of 20%, both due to the second accident. The expert in the field of rheumatology established a disability of 20% for fibromyalgia, half of which was attributed to each of the accidents. The District Court rejected the appellant’s claims for higher disabilities and their accumulation, and set his weighted medical disability at 28%: 10% for the first accident and 19% for the second accident. It determined that the functional disability is identical to the medical disability, and that the impairment of earning capacity would also be set at 28%. The wage base was set at the national average wage, 13,804 Shekels, as is customary regarding young people at the beginning of their professional path. The appellant was awarded 565,500 Shekels for past loss of earnings, 993,385 Shekels for impairment of earning capacity in the future, 194,861 Shekels for pension losses, 72,526 Shekels for pain and suffering, 215,900 Shekels for third-party assistance, 50,000 Shekels for mobility, and 545,350 Shekels for medical expenses and cannabis use. The total compensation was set at 2,637,522 Shekels, plus attorney fees at a rate of 23.4% and court costs. The Phoenix claimed that examining the judgment from a “bird’s-eye view” shows that the District Court erred when it awarded the appellant over 3 million Shekels for a disability rate of only 28%. The main thrust of its arguments was directed at the compensation for cannabis: according to its approach, it was proven that the appellant consumed cannabis long before its use was approved for him, and his parents, who paid the expenses, are benefactors to whom the right of action is transferred under the Civil Wrongs Law Amendment (Compensation for Bodily Injuries), 5724-1964. The Phoenix further claimed that the appellant did not mitigate his damage when he turned to private medicine instead of public, and that he concealed the identity of his grandfather, a trained physician, through whose connections he was treated in private medicine. It added that the attorney fees awarded deviate from the maximum tariff prescribed in the Bar Association Rules. The appellant replied that The Phoenix’s claims had already been rejected in the District Court, and that the determinations are based on the experts’ opinions, whom The Phoenix did not even request to cross-examine. According to him, most of the treatment he received was provided within a public framework, and he was not diagnosed by his grandfather, who also did not issue him the cannabis license. Regarding attorney fees, he claimed that the rules do not limit the court’s authority, and that the high rate expresses displeasure with the conduct of The Phoenix. In his own appeal, the appellant claimed that the pain disability accumulates with the fibromyalgia disability, that his weighted medical disability stands at 49.6%, and that his functional disability should be set at at least 50%. He further claimed that limiting compensation for medical expenses to ten years is arbitrary, and that an under-compensation was awarded to him for past expenses, third-party assistance, and mobility.
The Court’s Ruling
President Amit, with the concurrence of Justices Willner and Canfy-Steinitz, determined that the appeals should be dismissed, except on the matter of attorney fees. It was determined that the determinations of disability and impairment of earning capacity are based on the opinions of the court-appointed experts and on the credibility of the testimony of the appellant and his parents, and that the appellate instance does not readily intervene in findings of fact and credibility. Regarding the selection of disability clauses, the President noted that the District Court did not find an exceptional case justifying deviation from the opinions, especially since the appellant did not cross-examine the experts, and in any case no other medical opinion was presented. Regarding Section 34(b)(4) of the Schedule to the National Insurance Regulations, which requires “a need for regular medication”, it was clarified that no clear data were presented regarding the recommended future dosage of cannabis, nor even a clear statement that the appellant would require it for all the days of his life, and therefore the applicability of the section was not fully proven. The accumulation claim was also rejected: although the pain expert testified in her cross-examination that the disability she established is cumulative, the expert in the field of rheumatology clarified, in response to a clarification question from the court, that there is complete overlap between the fibromyalgia disability and the disability established by the pain expert. The District Court preferred his opinion, and it is not the practice of the appellate instance to intervene in the choice between opinions of experts. Regarding impairment of earning capacity, the President clarified that, as a rule, there is no necessity to identify between it and medical disability, and that in fibromyalgia syndrome there may be cases in which the impairment will exceed the disability rate. However, in our case, the District Court gained the impression that the appellant suffers from widespread pain and side effects, such as sleep disorders and irritable bowel, which have a real impact on his integration into the labor market, but a sufficient foundation was not laid for impairment of earning capacity to the alleged extent. This determination lies at the core of the discretion of the trial instance, which gained an unmediated impression of the injured person. In the assessment of damages, it was established that the appellate instance will intervene only in an exceptional error, while examining the overall amount from a “bird’s-eye view”. Even if it were possible to award more or less in one head of damage or another, the amounts “offset” each other. Regarding medical expenses and cannabis, the claims of both parties were rejected. The appellant presented receipts totaling approximately 280 thousand Shekels, and it was proven that he required treatments and that cannabis relieves him. On the other hand, it was not proven that it was impossible to receive at least part of the treatments in public medicine. The District Court properly balanced the proven expenses with the duty to mitigate damage. The concealment claim regarding the grandfather was rejected, as the District Court addressed it directly and gained the impression that the grandfather did not succeed in diagnosing the appellant’s illness and that the influence of his training on the treatment was not proven. The claim under the Bodily Injuries Compensation Law was also rejected, since when a benefactor grants a benefit to an injured person not on the basis of a statutory duty, this does not grant the tortfeasor the right to deduct the value of the benefit from the damages. On the other hand, The Phoenix’s claim regarding attorney fees was accepted. The District Court awarded 23.4%, a rate customary in ordinary tort claims, whereas in claims under the Compensation Law, Rule 2 of the Bar Association Rules prescribes a maximum attorney fee of 13% plus VAT. It was determined that this is a clear error on the face of the judgment, and the attorney fee was set at 15.34% of the compensation amount. In conclusion, the appeals were dismissed, except for the correction of the attorney fee to a rate of 15.34% of the compensation amount. The compensation in the amount of 2,637,522 Shekels remained in place. The Phoenix’s motion for stay of execution of the judgment became redundant, and the interim order issued on July 19, 2026, given the amount of 800 thousand Shekels paid by The Phoenix to the appellant, was canceled. Each party shall bear its own costs.
The writer is a founder and partner in the firm of John Geva-Hadar, Advocates and Mediators.
