¹ See, mainly, Rotenstreich v. A.G. (1953) 7 P.D. 58; S.J., vol. 1, p. 202.

² The same rule was applied to the possessor of moveable property: see, Chalach v. Suxrani (1956) 10 P.D. 1317. This is also the position in English Law: see Fleming, The Law of Torts, 2nd ed. (1961) 397. There has been a tendency recently to restrict the immunity to the occupier of land alone; see Kelpaor v. Hamosad Lebituach Leumi (1962) 16 P.D. 1429.

³ Based mainly on Addie and Sons (Collieries) v. Dumbreck [1929] A.C. 358 and Edwards v. Railway Executive [1952] 2 All E.R. 430.

⁴ Sec. 50(2) of the Civil Wrongs Ordinance lays down the general principle of the duty of care, as formulated in Donoghue v. Stevenson [1932] A.C. 562. Restrictive of sub-sec. (2), the duty towards a bare licensee is only to warn the licensee of any hidden peril known to the occupier. The courts gathered from this provision that no duty exists towards a trespasser: Farkash v. Oni (1962) P.D. 1933.

⁵ [1932] A.C. 562. As Witkon J. said in A.G. v. Berkowitz (1960) 14 P.D. 206, 215: “One's natural feelings have not yet accepted the view that a reasonable person ought to give as much consideration to the trespasser as he is required to give to other people who, unlike the trespasser, enter his premise by leave.”

⁶ Farkash v. Oni (1962) 16 P.D. 1933.

⁷ Lechem v. A.G. (1958) 12 P.D. 320 following Lynch v. Nurdin (1841) 113 E.R. 1041 and Gough v. National Coal Board [1953] 2 All E.R. 1283.

⁸ Drabsky v. A.G. (1958) 12 P.D. 655 following Buckland v. Guildford Gas, Light and Coke Co. [1948] 2 All E.R. 1086.

⁹ Greenberg v. Estate of Zion Shabbat (1950) 10 P.D. 1094, following Excelsior Wire Rope Co. Ltd. v. Callan [1930] A.C. 404.

¹⁰ Sec. 339 of Restatement, Torts, Vol. 2, P. 920.

¹¹ See Farkash v. Oni (1962) 16 P.D. 1933.

¹² Bershtlinger v. Rubinstein (1964) 18 P.D. vol. 3, p. 215; Gabai v. State of Israel (1964) 18 P.D. vol. 3, p. 582; Zilber v. State of Israel (not reported).

¹³ Four judges of the Supreme Court have concurred with his view (Berinson, Witkon, Landau and Many JJ.).

¹⁴ This is not a case of fictitiously raising the status of trespasser to that of a bare licensee, but of liability towards a trespasser as such.

¹⁵ See Commissioner for Railways v. Quinlan [1963] 1 All E.R. 897. The step forward of the law in England as a result of the decision in Videan v. British Transport Commission [1963] 2 All E.R. 860 is restricted to activities on land and does not apply to damage caused by the static position of land.

¹⁶ See Commissioner for Railways v. Cardy (1960) 34 A.L.J. 134. The test proposed by Dixon C.J. is more limited than that adopted by the courts in Israel. According to this test a duty towards a trespasser exists only in the case of “grave danger of serious harm”. The duty also only arises when the occupier knows that there is a high probability of trespassers entering the premises. As opposed to this, the liability in Israel exists in respect of any damage, and is not confined to cases of “high probability”. The Australian test, however, is not restricted to children under 12 years old.

¹⁷ The rule of the Restatement is confined to cases of damage caused by an artificial construction and the damage is death or serious bodily harm. A condition for liability is that the benefit to the occupier arising from the existence of the dangerous state of the premises is slight compared to the danger towards children which is involved. These restrictions do not exist in Israel. However, the Restatement does not limit the liability of the occupier to children under 12 years of age. This test has been applied in certain cases involving children of 16; see Prosser Law of Torts, 3rd ed. (1964) p. 382.

¹⁸ This test is not the same as the “attraction” test, for according to the latter the presence of the child in the vicinity of the object causing damage must be permitted, while in the former the presence of the child in the vicinity of the dangerous object is forbidden.

¹⁹ The age of 12 was adopted as the limit for liability since according to the Civil Wrongs Ordinance one cannot bring an action in torts against a child under 12 years of age. This analogy is open to criticism. According to the approach of the courts in Israel contributory negligence can be attributed to a child under 12. It follows that the ability to assess danger is attributed to such a child. Furthermore, the accepted view is that the Ordinance recognizes the liability of a minor but prevents an action being brought against him by procedural means.

²⁰ See n. 4, supra. The present writer is of the opinion that the said statutory provision does not exclude liability towards a trespasser. The provision that a warning of danger is sufficient as regards a bare licence does not necessarily lead to the conclusion that there is no duty towards a trespasser. At the most it may be said that a warning to a trespasser is also sufficient. But where no warning is given, or where this warning is not effective, the duty should be determined according to the principle of Donoghue v. Stevenson laid down in the above sec. 50(2).

²¹ International Lawyers Convention in Israel, (1958), (Jerusalem, 1959) p. 61.

²² Occupiers Liability Act, 1957 (5 and 6 Eliz. II Ch. 31). This amendment did away with the distinction between the liability towards a bare licensee and that towards an invitee, but did not alter the common law as regards trespassers.

²³ International Lawyers Convention in Israel, p. 62.

²⁴ It is the hope of the present writer that the Israel legislature will follow the example of the Occupiers' Liability (Scotland) Act, 1961 (8 and 9 Eliz. II, Ch. 30) which applied the general principle of negligence to the occupier in his relationship with a trespasser.