The main tool for proving the causal link between environmental pollution and bodily harm is scientific evidence. This evidence is supposed to connect the world of science and the world of law so that the judge can determine whether science recognizes the infection created by the defendant as the cause of the bodily injury suffered by the plaintiff. In order for the court to rely on the scientific evidence, it must be convinced that the theory behind the evidence is accepted in the scientific world, and that the test that the witness testifies to was done in accordance with the necessary rules. This shows that in cases where there is scientific certainty, i.e., reliable evidence of the unequivocal position of science on the subject in dispute has been brought before the court, the court will rely on the scientific findings.... (ibid., paragraphs 37-36)
- As it was stated in the Kishon case, "... The fact that a certain substance constitutes a risk factor is not sufficient to prove a claim, and the plaintiff must prove his claim, starting with the potential causal link and ending with the specific causal link." Even if we accept the Applicants' argument [which I found unproven] that the emissions from the chimneys of the Respondents' factories constitute a risk factor for developing cancer (which ?), the applicants must also prove , among other things: excess morbidity (which they failed to prove as detailed above); A potential causal link, as well as to prove that the emissions constitute a "risk factor in the relevant exposure profile", which includes "the extent and extent of the exposure, the period of exposure, and the manner of exposure – something that was not done by the applicants, as well as taking into account "other normal risk factors (such as age, smoking, sun exposure, family genetics, etc.)", which is also not taken into account in the scope of the applicants' evidence and the opinion on their behalf.
- As stated above, the way to prove the existence of a factual causal connection is by means of scientific evidence from the medical world. The applicants, as well as the experts on their behalf, failed to convincingly present that the emissions constitute a "risk factor in the relevant exposure profile" that includes "the extent and extent of the exposure, the period of exposure, and the manner of exposure" (where the residents live [ambient air] and in general), nor did they present that the opinion took into account "other normal risk factors (such as age, smoking, sun exposure, family genetics, etc.)". Therefore, and in light of all of the above, the obvious conclusion is that the applicants failed to prove the existence of a causal connection.
- In the Kishon case, it was held, and the matter has good force in our case as well."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." In light of all that is brought in this judgment, it is necessary to conclude that the applicants did not meet this burden of proof.
- In the Kishon case above, it was ruled in relation to 'epidemiological research', while mentioning the Krishov ruling, inter alia that:
Because even epidemiological studies do not necessarily prove a causal relationship, but rather statistical circumstantial evidence. "The language of epidemiology is the language of statistics, of prevalence, of probabilities, regarding the connection between a certain substance and a particular disease in groups of people" (Krishov, v. 23). Excess morbidity is therefore a necessary but not sufficient condition for proving a causal relationship, and a distinction must be made between association and causation. The epidemiologic-statistical research should be examined according to the accepted criteria mentioned in Justice Naor's judgment in the Krishov case (paragraph 44 of the judgment), known as ill's guidelines. (ibid., para. 35)
- In Prof. Grotto's position paper, he explained and referred to many epidemiological studies, which, as stated, are statistical circumstantial evidence, and do not necessarily prove a causal connection.
- Moreover, Grotto writes in the position paper – and this does not help the applicants in proving the existence of a causal connection – inter alia that "...Summary and presentation of morbidity and mortality data by different spatial units... It does not allow determining the reason for the presence of excess morbidity in the area, but indicates that there is a need to conduct a dedicated study..." (ibid., p. 34 below) (see also Prof. Lin's testimony on page 540, lines 7-13).
- As for the test of "recurring bias", it should be noted at the outset that "...The question of whether the recurring bias test is a binding rule is not free from doubts" and that "...The theory of 'recurring bias' as a binding rule remains to be examined" (The Kishon Case, paragraphs 47-48) (and also: paragraphs 557-561 of the Respondents' summaries).
- To the substance of the matter, it should be said that the applicants have not even met all the cumulative conditions in light of which the 'recurring bias' test will be applied. In the Kishon case, it was held in this matter, inter alia, that:
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,