In light of what was clearly established in the Golan case, the Applicants' argument that "...In tort claims for hazardous materials, the criteria for proving a factual causal connection should be more flexible than traditional tort law" (see section 110 above).
Excess Morbidity, Causal Connection, Causal Ambiguity, Recurring Bias - The Legal Framework
- As a rule, it should be said that the rule that is customary for proving excess morbidity from a polluting source requires proof of a potential and specific causal connection by means of scientific evidence, when excess morbidity is a necessary condition but not sufficient, and causation must also be proven and not just a correlation (see also Prof. Lin's testimony on page 772, lines 16-18).
- Hence, in claims involving alleged damages caused by exposure to toxic substances, the plaintiff-applicant must prove the existence of a potential factual causal link, i.e., whether the alleged exposure is capable of causing the alleged disease, as well as the existence of a specific factual causal link,e., whether the plaintiff's exposure in certain circumstances actually caused the plaintiff's illness, against the background of all of his personal data and the circumstances of the exposure.
- In the Kishon case, which was heard by the Supreme Court (Civil Appeal 6102/13 Atzmon v. Haifa Chemicals Ltd.), it was held that it was required, inter alia, to prove the existence of all of the following characteristics-conditions:
- Excess morbidity.
- Potential causal link, i.e., that a certain substance constitutes a risk factor for a certain type of cancer (the plaintiffs assumed that all the substances cause all types of cancers, which was not proven at all, and on the other hand, was concealed by the defendants' experts and the professional literature).
III. Because the substance is a risk factor in the relevant exposure configuration (solid, liquid, gas).
- Because the substance is a risk factor in the relevant way of exposure (breathing, swallowing, skin exposure).
- that the material constitutes a risk factor in the relevant exposure profile, which includes the scope and extent of the exposure, the period of exposure, and the manner of the exposure. (hours and days or months and years, continuously or at intervals, above or below water, swallowing or breathing large quantities or sporadic exposure to small quantities, etc.).
- Other Normal Risk Factors Should Be Considered (such as age, smoking, sun exposure, family genetics, etc.) (ibid., paragraphs 37-36).
- The method of proving the existence of a factual causal connection is by means of scientific evidence from the medical world. In addition, as stated, the question of the existence of a legal causal connection will be examined, i.e., whether there is justification for obligating the tortfeasor to liability for the exposure to hazardous materials. A legal causal connection will be recognized only for those factual factors for which there is justification to obligate the tortfeasor with tort liability.
- When there is difficulty in proving the existence of a causal connection, there is "causal ambiguity". In the literature, five main categories of such a situation have been recognized:
Inability to identify the wrongdoing that caused the damage