Class Action (Tel Aviv) 11278-10-19 Yehoshua Klein v. Oil Refineries Ltd.

1. for Approval") concerns alleged air pollution in Haifa Bay, the excess morbidity caused by it, and the infringement of the autonomy and anxiety caused to the residents of the area as a result.
2. The motion to certify began on June 7, 2015, when the Applicants filed the original motion for certification in a proceeding No . Class Action No. 14087-06-15. After a procedural proceeding that included a request to attach evidence and a request to delete a response letter, including appeals to the Supreme Court (see   Civil Appeal Authority 125/19 and Civil Appeal Authority 186/19), and in light of the Supreme Court's decision,  on September 11, 2019, the Applicants filed an amended application for approval, which is the application before me.  Subsequently, the number of the proceeding was even changed to the number in the heading.
3. It should be noted that alongside this motion for approval, another class action is being conducted in the Haifa District Court, before my colleague the Honorable Judge Ron Sokol, - Class Action 36568-07-19 Citizens for the Environment (NPO) v. Elcon Recycling Center (2003) Ltd., which also deals with excess morbidity due to alleged air pollution in Haifa Bay, but concerns bodily damage suffered by the members of the class due to lung cancer and lymphoma cancer. This is in contrast to the application for approval here, which deals with non-pecuniary damage, which was allegedly caused to the members of the class.

Request for approval from an overview.

4. The court was asked to determine that the group on whose behalf the application for approval was filed, as stated in section 50(b), will be defined as follows:

"Residents of Haifa Bay who have lived in Haifa Bay in the past ten years, or some of them, according to the Environmental Report, number 540,000, who have been damaged by the emission of substances by the respondents to both the air and the Kishon River, and are liable to get and die from various types of cancer, as well as from lung diseases, heart attacks and strokes."

5. The alleged causes of action are a violation of sections of the Prevention of Environmental Hazards Law (Civil Claims), 5752-1992; breach of a statutory duty of the Environmental Protection Law (Emissions and Transfers to the Environment – Reporting and Prescription Obligations), 5772-2012 (hereinafter: "the Environmental Protection Law Reporting and Registration Obligations"); and the Clean Air Law, 5768-2008 (hereinafter: the "Clean Air Law"); unjust enrichment; Negligence under the Torts Ordinance [New Version]; misleading, concealment of information, and breach of the duty of disclosure in accordance with the Clean Air Law and the Environmental Protection Law, reporting and prescription obligations.
6. Applicant 1, Mr. Yehoshua Klein, lives in Kiryat Ata. About 10 years ago, Mr. Klein was diagnosed with prostate cancer, from which he recovered, and this made him sensitive to health risks.
7. Applicant 2, Ms. Naama Kraus, lives in the Neve Sha'anan neighborhood of Haifa. Following the aforementioned publications, among other things, she decided to move to a more remote neighborhood that is less exposed to air pollution. Also, a neighbor of Mrs. Krauss was diagnosed with cancer and died a few years ago.
8. Applicant 3, Ms. Yehudit Blum, grew up in the Neve Sha'anan neighborhood of Haifa, lived in Kfar Hasidim for five years and has lived in Tivon ever since.
9. Applicant No. 4, Mr. Eli Brautman, has lived in Haifa for about 70 years, grew up in the Hadar neighborhood of Haifa and then moved to the Ahuza neighborhood in the city.
10. All of the applicants noted that they were shocked to discover in media reports that the cancer morbidity rate in the city of Haifa and its environs is higher than in the rest of the country, as a result of air pollution caused by the emissions of hazardous substances from the industrial plants in Haifa Bay.  They also discovered that the Ministry of Health recognizes the causal link between the pollution in Haifa Bay and the incidence of cancer, heart and lung diseases.
11. Since the applicants learned of the health risks caused by air pollution as a result of the emission of hazardous materials from the industrial plants in Haifa Bay, they have become more anxious about their health and the health of their family members. Knowing that as a result of air pollution there is an increased risk of terminal cancer, causes them great anguish, despair, and serious concern for their health. Applicant 2 and Applicant 4 added that they are in constant anxiety for their lives.

 The nature of the request for approval is as follows

12. In paragraph 254 of the motion for approval, it is argued, inter alia, that "...Over the years, the defendants emitted prohibited and life-threatening substances beyond the permitted amount, and as a result, caused the plaintiffs to develop various types of cancer to the point of danger of death and/or to an increased risk of developing various types of cancer to the point of life-threatening."
13. The Applicants claimed, inter alia, that the defendants had knowingly misled them by "...who knew that they were emitting hazardous substances beyond the permissible amount, thereby harming public health to the point of endangering life" and that "...The defendants violated their autonomy... caused air pollution and as a result, the plaintiffs contracted life-threatening cancer and/or endangered the plaintiffs' lives by the possibility of developing life-threatening cancer. Thus, in addition to the physical illness, they also caused them feelings of fear, anxiety, despair, insecurity, uncertainty about the future of their health, etc. (ibid., paragraphs 256-257; and section 335).
14. At the end of the application, within the framework of sections 295-305, the Applicants note that "the damages claimed are damage that is not pecuniary damage", and in accordance with the rulings of the courts in tort cases with respect to pain and suffering, compensation was claimed in the amount of twice as much as NIS 28,000 per individual, and multiplied by the number of residents of the Gulf [530,000 people] and subtracted by 10%, the compensation claimed for the non-pecuniary damage amounts to  NIS 13,356,000,000.
15. When the application for approval was first directed to my treatment, in the second half of 2020, a decision was made whereby, inter alia, the parties were asked to explain the substantive reason for holding the proceeding here separately from Class Action (Haifa) 36568-07-19 Citizens Association v. Elkon Recycling et al., which was heard as aforesaid in the Haifa District Court.
16. In their response of August 16, 2020, the Applicants (Kan) noted, inter alia, in their objection to the possibility of transferring the hearing to the Haifa District Court – that the manner of clarification of the proceedings was different, since the request for approval in Haifa is "...A tort claim by a group of cancer patients... and fills these are damages of expenses and loss of earnings", while the application for approval in question relates to "... All the residents of Haifa Bay who are suffering from anxiety due to the fact that there is an excess of cancer morbidity and cardiovascular events, so it is clear that they have not yet contracted cancer and are only claiming the damage of the violation of autonomy." (ibid., section 2; See also what is argued in section 4; in section 15, paragraph: "...In the class action, it was alleged that uniform damage was caused by infringement of autonomy"; And in paragraph 30 in the middle: "...to the request of the present group, which deals only with excess morbidity and damage caused by infringement of autonomy...") [See also section 37 to the respondents' response of September 19, 2020].
17. The essence of the application was briefly described in the Applicants' summaries as follows:

This request was filed by four residents of Haifa Bay, representing 530,000 residents, who for decades were exposed to pollution emitted from the respondents' factories and as a result to an excess morbidity of cardiovascular diseases and cancer (  paragraph 1 of the summaries).

18. An examination of the applicants' affidavits shows that no claim was made by three of them that they had cancer or by the four of them that they had any cardiovascular disease, as a result of the alleged air pollution.
19. In his affidavit, Klein noted that he had previously had prostate cancer (ibid., paragraph 6).  I did not find room to give weight to this claim that it was not backed up by any medical documentation, let alone documentation that could link this disease to the alleged air pollution (see also Prof. Friedman's response  on pages 2622, lines 29-34 and 2623, lines 1-4).
20. In his testimony, Prof. Rennert explicitly stated, inter alia, that prostate cancer is not related to air pollution (see his testimony on pages 1953, line 31; 1954, line 4, and 1963, line 19). In the absence of reliable and convincing evidence by an epidemiologist or expert on behalf of Mr. Klein on this point, I accept the words of expert Rennert (see also page 9 of his opinion).
21. In his testimony, Bratoman noted, among other things, that his cousin had died of cancer. He was asked in this context and answered as follows:

Adv. Mr. T.  Rotman:          ...Do you have an opinion, thought, knowledge, what caused the cancer from which your cousin died?