Whose Loss is it? Justice and Disability in Torts

The Supreme Court ruling in the Abu Hanna case regarding the calculation of loss of earning capacity is rightly considered groundbreaking. This article aims to highlight three significant blind spots in the ruling:

Respect for Autonomy and Equality: The calculation of earning capacity loss for individuals with disabilities should honor their status as autonomous and equal beings—just as the ruling demands respect for those whose gender or ethnicity negatively affects their earning potential in the Israeli labor market.

Justice in Relationships: The same justification—relational justice—that underpins the Abu Hanna ruling for minors should also apply to adults whose low income results from disability, gender, or ethnicity.

Misuse of Efficiency and Corrective Justice Arguments: Relying on these arguments in the context of strict liability frameworks like the Road Accident Compensation Law (as opposed to tort law governed by the Israeli Civil Wrongs Ordinance) is questionable and possibly incorrect.

The proposed remedy for each blind spot involves adopting relational justice theory as a normative framework for understanding, justifying, and reforming tort law.