Inability to distinguish between damages caused by various wrongdoers
Inability to link a tortfeasor to a victim
Inability to prove that the damage was caused by wrongful conduct
Inability to identify the injured person
[See the Kishon case, supra, paragraphs 40-41; the Golan case, supra, paragraphs 13]
- In the Kishon case above, it was also held with regard to the "recurring bias", inter alia:
The doctrine of probabilistic compensation or relative liability was therefore rejected in the Malul case, but Vice-President Justice Rivlin was willing to recognize a special case of causal ambiguity, which is a situation of "recurring bias" – "a class of cases characterized by the creation of recurring and shared risks towards a group of injured parties, and the existence of a systematic bias that acts to the detriment of one of the litigating parties if the balance of probabilities rule is applied to each of the cases [...] Most cases of repetitive bias fall into the fifth category of causal ambiguity mentioned above [....] The starting point is that there is a causal connection between the excess morbidity and the polluting plant, and therefore, in my opinion, the excess morbidity must be significant and statistically significant, and there is no room to apply this solution, where the excess morbidity is negligible or insignificant [...] In the Malul case, Deputy President Rivlin presented four elements for the existence of a recurring bias: tortfeasive; a group of injured persons; a recurrent risk shared by all the victims; and a consistent bias in applying the whole balance of probabilities (ibid., para. 28). No rivets were established as to the manner in which these elements were proved, but it was determined that it must be proven that all of them "exist in a clear way, or in other words, that the reasons underlying the test are clearly revealed." This is done through the use of the best evidence, including statistical evidence and scientific studies [....] A plaintiff or defendant who claims a recurring bias must characterize the group of victims, prove that the tortfeasor caused a recurring risk that caused damages to some of the members of the group, and that he will refrain from proving his position according to the balance of probabilities test. Without proving the four elements at the level of the balance of probabilities, the claim of recurring bias does not apply [....] To be precise, a prerequisite for raising a claim of repeated bias is the existence of vague causation. As stated, the recurring bias test is intended to exempt problems in proving a causal connection in cases where there is ambiguous causation, where the obstacle to winning the claim is in the balance of probabilities test. The recurring bias test is not intended to overcome problems in proving a causal connection in cases where the causal connection does not exist, or in cases where the particular circumstances of the case create evidentiary difficulty in proving the causal connection [...] Thus, the recurring bias test does not come to circumvent or obviate the requirement to prove a factual causal connection between the tortfeasor's wrongful conduct and the damages of the injured parties. The test only expands the circle of the injured parties (and tortfeasors) who are examined for the purpose of proving the existence of that causal connection, beyond the parties to the tort proceeding (the plaintiff and the defendant), and enables the examination of the causal connection between all the injured parties in the class and all the tortfeasors (ibid., at length in paragraphs 42-48).
- As to the relationship between the requirement to prove the existence of a causal connection and the recurring bias test, it was held in the Kishon case above, inter alia:
The salvation of a plaintiff who fails to prove a causal connection will not come from the test of repeated bias. I have no choice but to quote from the words of Deputy President Justice Rivlin in the Malul case: