"In my judgment, I proposed the rule that I think is appropriate in light of these criteria and based on the premise that the rules of proof of tort claims should reflect the idea that torts are complete torts – there is no 'half tort' and no 'one-eighth of damage' – and corrective justice is at its core a bilateral principle that requires proof of a causal connection" (ibid., paragraph 55, emphasis added).
Hence, it is not enough to point to a number of injured persons who have any connection to the defendant. Even if epidemiological studies have been brought that show high morbidity rates among the members of the group, and there is a certain connection or correlation between the group and the defendant, the plaintiff will have to determine the potential causation between the damages of each member of the group and the risk to which they were exposed by the defendant (on the distinction between a connection/correlation and a causal connection at the scientific-legal level, see the Krishov case, pp. 338-340). The plaintiffs should have proved, on the basis of scientific evidence, that there is a potential causal link between the tortious act that constitutes a recurring risk (e.g., the discharge of cadmium into the stream) and the harm to each member of the group (e.g., prostate cancer) in the way and manner in which the injured party was exposed to the tortious act (e.g., skin exposure at a certain concentration). It is possible that members of the same group were exposed to several recurring risks at the same time (exposure to several hazardous substances) and it is possible that the damages of the members of the group are expressed in a number of different ways (diseases of different types), but it must still be shown that there is a potential causal connection between each tortious expression and its tortious source (ibid., paragraph 48).
- As a concise and non-exhaustive summary, it should be said that the rule for proving excess morbidity from a polluting source therefore obligates – and even the applicants here, within the framework of their application for approval – to prove a potential and specific causal connection by means of solid scientific evidence, while meeting specific requirements regarding the type of substance, the way of exposure and description, and weighing additional risk factors. To be precise, excess morbidity is a necessary but not sufficient condition, and causation must be proven, and not just correlation, must be proven, even in cases of causal ambiguity or recurring bias.
- In paragraph 334 of the applicants' summaries, it was argued that: "All of the applicants, in their affidavits and testimony, well established their personal cause of action as direct victims of the pollution of the factories with odors and anxiety caused to them by excess morbidity to develop cancer" (see also what is stated in paragraphs 5, 126 and 332 of the summaries and paragraphs 12-18 of the summaries of the reply regarding the proof of 'excess morbidity').
- In their summaries, the Applicants also referred to and relied on the existence of a 'recurring bias'. Thus, for example, in section 51 [section 320], they argued, inter alia, that: "...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 test of the balance of probabilities"... The model of recurring bias applies where the tortfeasor creates a repeated risk to a group of people and there is a consistent bias in applying the rule of the balance of probabilities, i.e., the defendant or the plaintiff always wins" (Civil Appeal 1415/13B. v. Heinz Remedia inTax Appeal, para. 24 (July 22, 2014)."
- Similarly, in paragraph 19 to the summaries of the response, the Applicants argued, relying on the existence of a recurring bias, inter alia, that: "...However, when applying the balance of probabilities test regarding the damages caused by that risk, there is a recurring bias: although it has been proven that the risk created by the wrongdoer materializes and causes damage to some of the injured parties in the group, one party to the claim will win or lose 100% of the individual claims that will be filed. In this situation, we are dealing with a systematic bias in applying the balance of probabilities, and considerations of corrective justice and effective deterrence require an alternative solution to distinguish between repetitive bias, evidentiary damage, and loss of chances of recovery..."
and in paragraph 73 of the summaries of the reply, the Applicants reiterated that, inter alia, that: "...A prerequisite for raising a claim of repeated bias is the existence of ambiguous 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 test of the balance of probabilities"... "The recurring bias model applies where the tortfeasor creates a repeated risk to a group of people and there is a consistent bias in applying the balance of probabilities rule, i.e., the defendant or plaintiff always wins."
- The respondents addressed the issue of excess morbidity, inter alia, in chapter B(2), sections 20-46. and according to the claim of the recurring bias, see, inter alia, sections 552-562 and 568-575 for their summaries.
- In the Golan case above, it was held, inter alia, that "...In order to prove the foundations that constitute the recurring bias test – according to the balance of probabilities – the parties are required to bring the best evidence, and it can be assumed that in cases where this is not required by the nature of the risk, they will be able to use the usual tools at their disposal, including expert opinions, professional material and relevant testimonies" (ibid., para. 31).
Discussion and Decision
- After considering the arguments of the parties, examining the opinions and testimonies of the experts and the other witnesses, and all the documentation that was brought before me, I came to the conclusion that the applicants' claims should be rejected, and that they were unable to prove the rule required of them, inter alia, with regard to the existence of excess morbidity and a causal connection.
- The rule is that 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 illness, as well as the existence of a specific factual causal link, i.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 our case, as we recall, it was not claimed that the alleged exposure caused any illness of the applicants.
- Thus, it has already been determined above and in detail, in the chapter that discusses the irrelevant comparison with the national average, that a comparison of morbidity in Haifa with morbidity in the general population (the national average) cannot reliably prove the existence of an excess of morbidity in Haifa (see at length paragraphs 462-469 above).
- As detailed above, the expert opinions of Prof. Lin and Dr. Shlita do not prove at the required level of proof that there is excess morbidity in Haifa Bay that originates from factories (only) among those who are part of the group. The theses that underlie the opinions of the aforementioned experts have already been rejected by the Haifa District Court and the Supreme Court , as well as by the framework of this judgment, and they do not have the power to serve as an appropriate scientific basis for determining that there is excess morbidity in Haifa Bay – morbidity that originates from factory emissions [independent of other recognized proven emission factors].
- It is not superfluous to note that apart from the experts and Prof. Grotto, no professional witnesses testified on behalf of the applicants, so that it is not possible to relate evidentially to the different paperwork that was submitted as having weight.
- At this point, it is even worth emphasizing that Grotto did not submit an opinion, and there is no room to treat any of the writings in Appendices 4 and 4.1 as opinions.
- Moreover, if the Applicants wished to give real weight to Grotto's position and professional opinion, it would have been appropriate to submit his opinion or at least his affidavit. At the end of the day, a "position paper" "as its name (no/yes) is", it expresses Prof. Grotto's personal position in this case on the basis of his interpretation of various studies (in which he did not take part in editing), and it does not express, as it turned out to be, the position of the medical establishment.
- The Applicants rely on what is stated in the position paper, as one by virtue of which it is possible to conclude that there is an excess of morbidity in Haifa Bay that originated from the Respondents. My opinion is not theirs. See also the discussion of the matter as detailed above.
- In paragraph 27 of the applicants' summaries, they refer to what is stated on page 4 of the position paper in the middle. In the brisha it is stated that "...Epidemiological studies in the Haifa district have found a link between industrial air pollution and respiratory morbidity and non-congenital air pollution and asthma in children." It is not possible to give adequate evidentiary weight to 'obscure' epidemiological studies without them being presented in court by their editors. Note that the paragraph does not say "excess morbidity" but only morbidity, and that it is also a source of air pollution "other than structural" as distinct from industrial air pollution. Moreover, the group in question in this paragraph is children, and it does not represent the group that is the subject of the application for approval.
- The 2013 Environmental Emissions Register (EPP) apparently includes, similar to Appendix 11 to the Applicants' Appendices (2014), data on all sources of emissions in the Gulf of Non-Methane Volatile Organic Substances (NMVOCs), such as power plants, gas stations, and transportation. Thus, the matter cannot be attributed to the respondents alone.
- In paragraph 22 of the summaries, the Applicants refer to what is stated on page 5 of the position paper, where it is written that "...In light of the exceptional morbidity data, including the epidemiological studies in the Haifa Bay area, including data and studies published after the decisions of the District Committee, and in accordance with the existing knowledge in the medical literature, the Ministry of Health believes that in light of the number of programs in the Haifa Bay area, they have significant potential for impact..". These things do not constitute significant legal evidence to prove excess morbidity caused to the group, from the factories alone.
- In paragraph 23 of the summaries, the applicants refer to page 6 of the position paper, where it is stated, inter alia, that "...In recent years, the World Health Organization and professional associations have determined that there is a causal link between certain diseases and exposure to air pollution based on a review of numerous epidemiological studies that have examined large populations as well as toxicological studies. In this paper, we focused on three groups of diseases for which a causal link was established with air pollution – exacerbation of asthma in children, cardiac morbidity and mortality, and lung cancer."
- The epidemiological as well as toxicological studies have not been proven before the court. Moreover, we are talking about general things that do not unequivocally link the factories to certain diseases as a single factor without which there is no one. As noted at length above, the position paper (Appendix 1) did not determine that the (polluted) air emitted from the chimneys of the factories and which reaches the residential area and which the members of the group breathe as environmental air in their area of residence, is the only one that causes the excess of morbidity in the Gulf.
- Thus, Grotto also confirmed in his testimony in the cross-examination, in connection with what was stated in the position paper, inter alia, that he "... I know that electricity generation also causes morbidity and cancer." According to him, transportation, electricity generation and air pollution from industry emit a carcinogen, which does not need to be proven. He was asked if he was aware "...The one who smokes from ships has the emission of pollutants from ships in the port," he replied:
This, too, there are many sources of pollution that people are exposed to. Our goal, as a public health advocate, is to reduce as much as possible the sources that can be reduced, the PM2.5 that I talked about earlier cannot always be reduced. Part of it comes from a struggle from Africa and we have nothing to do, but the part that we can deal with is our job to deal with...