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 (ibid., at length in paragraphs 42-48)
- Thus, for example, it was also not proven by the applicants that they would be prevented or unable to prove their position-claim according to the balance of probabilities test. A mere legal argument on this point does not have the power to fill the evidentiary gap in the matter (see also paragraphs 552, 555, 563 and the appeal is changed 94 and paragraphs 569-573).
- The rule is that when there is difficulty in proving the existence of a causal connection, there is "causal ambiguity," and that one of the ways to deal with the existence of "causal ambiguity" is through the "recurring bias" theory, and that "most cases of recurring bias fall into the fifth category of causal ambiguity" – the inability to identify the injured party (The Kishon Case, para. 43). In our case, we do not claim by the applicants, let alone that it has not been proven by them, that they are unable to identify the injured party, i.e., the 'group'.
- As quoted above, and as it is also stated elsewhere in the Kishon case , "...The salvation of a plaintiff who fails to prove a causal connection will not come from the test of repeated bias" (ibid., para. 48). Since it has not been proven by the applicants that there is a potential causation between the tortious act that constitutes a recurring risk (for example, the emission of pollutants into the Gulf air) and the possibility of any member of the group falling ill, there is no room to apply the test in their case.
- Moreover, in the Kishon case, it was held, inter alia, that "...A claim of repeated bias is the type of argument that must be raised explicitly in the pleadings, since it is a claim based on the foundations of fact" (ibid., paragraph 38). In the motion for approval under the heading "Vague Causation and Repeated Bias", section 274 argues in a general and somewhat vague manner that "...The Applicants will argue that the Respondents, by their actions or omissions, breached their duty to them and caused them damage, and this is sufficient to compensate them ("to compensate them"), and they will not even be able to prove the factual causal connection and there will be a probabilistic connection to the damage." Section 275 cites an extensive quote from another civil hearing 4694/05 Malul, and in section 276 quotes words written in an article by the scholar Boaz Schnur "The Causal Connection in Claims for Bodily Injury Caused by Environmental Pollution" (2007). In the applicants' affidavits, it was not claimed that there was anything to be said about the fulfillment of the factual conditions required for the operation of the rule. Prima facie, and for this reason alone, there was room to postpone the application of the test.
- Therefore, I found it necessary to determine, in accordance with the standard of proof required in the proceeding before me, that the applicants failed to prove excess morbidity, did not prove the existence of a causal connection of all kinds (and even by means of appropriate scientific evidence), and therefore, there is no room in their case for the application of the recurring bias rule, even when it is a class action.
Shifting the burden due to "something dangerous" or "the thing speaks for it"
- In summary, it should be stated that the Applicants argued in their summaries that the rule "the matter speaks for him" (section 41 of the Torts Ordinance) as well as the provision of section 38 of the Torts Ordinance, which deals with a "dangerous thing", apply in their case (see at length in the introductory chapter on page 9 which refers to sections 58 and 59 of the application for approval [see in detail sections 50g-j of the application]); Section 50 is an appendix to the summaries, and for the purposes of section 41 of the Ordinance also in sections 91-92 of the Reply Summaries).
- With respect to the above two sections, the respondents argued, inter alia and briefly, that the applicants do not meet the condition required for the applicability of proof of damage. According to them, in addition, the Applicants did not meet the burden of proving all the cumulative conditions that are required for the application of the aforementioned sections, and their argument on the subject at hand is devoid of any required evidentiary basis (see at length pp. 98-100 and 103-104 for their summaries).
The Legal Framework