Even assuming that the materials that were discharged into Kishon are dangerous in nature – an assumption that can be disputed since some of the substances are found in food and drinking water, and materials such as nickel and chromium are found in objects such as wristwatches, knives and forks – this argument does not help the appellants. The burden transfer clauses deal with the fault component, i.e., if there was negligence on the part of the tortfeasor, but they do not exempt the injured party from proving the causal connection. In any event, we are not required to address the preliminary question of whether the materials that were disposed of are dangerous for the purposes of section 38 of the Torts Ordinance.
Moreover. A prerequisite for the application of the section is that it has been proven that the damage was caused by the dangerous thing, and this is precisely the question that the appellants had to prove: whether the diseases caused to them were caused by the materials discharged by the factories.
The same applies to the claim of transfer of the burden due to the rule "it testifies to itself" set forth in section 41 of the Torts Ordinance. This rule does not assist the appellants, since the burden of proving the causal connection between the damaged property and the damage remains on their shoulders, and the rule of "the matter testifies to itself" does not apply to them (cf. Israel Gilad and Ehud Gotel, "On the Expansion of Liability in Torts in the Causal Aspect – A Critical View," Mishpatim 34(2), 385, 410-411 (2004). For the problematic application of the rule and a suggestion to single it out to cases in which it is appropriate to allow the plaintiff to prove his claim by means of statistical evidence, see Guy Shani, "The 'The Thing Testifies to Itself' Rule in Tort Law – A Reexamination" Mishpatim 85 (2005) (ibid., paragraphs 28-30)
Discussion and Decision
- First, it should be clarified that the provisions of sections 38 and 41 apply to a claim for "damage", as defined in the Torts Ordinance, which also includes non-pecuniary damage, including infringement of autonomy, as a type of non-pecuniary damage, provided that all the cumulative preliminary conditions required for the transfer of the burden of proof have been proven by the plaintiff.
'A dangerous thing'
- Section 50T of the application quoted section 38 of the Torts Ordinance , and in section 50J it was argued that "...The polluting substances were emitted from the respondents' factories, which are under full control."
- As detailed above, the language of section 38 of the Ordinance teaches four cumulative conditions.
The Second-Intermediate Condition In fact, as mentioned above, it contains two conditions"...that the matter is 'dangerous', and that there is a causal connection between the dangerous thing and the damage caused". At the same time, the case law added an additional (non-controversial) condition as detailed above, namely, "...Because the use of the dangerous thing was not its usual use".
- It was held in the case of Ziyad above that the burden is on the applicants "...to prove the existence of the causal connection as aforesaid, and for this purpose his version must be reconciled with the fact that the dangerous thing was the cause that caused the chain of events that led to the event of the damage, in the sense of 'The Reason' (cause) for the damage that has occurred" (ibid., para. 9).
- The applicants' argument for the applicability of section 38 should be rejected.
- As discussed at length in the judgment, the Applicants failed to prove, through reliable evidence, including expert opinions, that the damage claimed to have been caused to them was caused by the 'hazardous material', i.e., the emissions from the factories.
- The Applicants failed to prove, by means of reliable scientific evidence, an excess of morbidity (alleged) caused as a result of the activities of the factories-respondents, as well as the existence of a causal connection between the respondents' acts (torts) and their alleged non-pecuniary and tangible damage.
- In the light of section 38 above, it will also be said that no causal connection between the 'dangerous thing' (the emissions from the factories) and the damage claimed to have been caused to them has not been proven by the applicants.
- Moreover, the Applicants also failed to prove the additional condition required, according to which the use of the 'dangerous thing' (i.e., the emissions from the factories) was not the usual use of it by the Respondents.
"The Word Speaks for Him"
- in section Section 41 of the Ordinance and Section 50H were cited for the application. It was argued that "the factories from which the pollutants were emitted are under the control of the respondents and the applicants have no ability to know the cause of the emission of the polluting substances. The emission of substances in quantities that exceeded the permissible is consistent with the conclusion that the respondents did not take reasonable precautions." The applicants' affidavits did not say anything on this matter.
- The first of the three cumulative conditions set forth in section 41 requires "the plaintiff's lack of knowledge and inability to know the circumstances of causing the damage." The applicants did not bring any evidence to prove the existence of this condition and did not refer to it at all.
- It should be noted that in the case of Anonymous above, it was emphasized, inter alia, that "...The presumption relates to the manner in which the factual occurrence is proved, and not to the normative judgment of a certain conduct as negligence."
- The third condition set out in section 41 deals with "a case that caused damage". In this framework, the court is required to carefully examine whether the tortious event is consistent with the conclusion that the defendant was negligent more than with the conclusion that he took reasonable care. The purpose of the condition is to ensure that in a preliminary test the conclusion of negligence is required (see the Anonymous case above).
- After examining all the evidence that came before me and given all of the above, it can be determined that the Applicants did not meet the burden of proving that the Respondents were negligent (during the relevant period) and were negligent in their activities. And precisely, as it was held in the Kishon case above, there is nothing in the rule set forth in section 41 to benefit the applicants here: "...As the burden of proving the causal connection between the damaged property and the damage remains on their shoulders, and the rule of 'the matter testifies to itself' does not apply to them." This is also the factual and legal state of affairs in our case.
- Therefore, and in relation to the two sections in the above discussion, and as ruled in the Kishon case , "... The burden transfer clauses deal with the fault component, i.e., if there was negligence on the part of the tortfeasor, but they do not exempt the injured party from proving the causal connection." In our case, and as detailed in detail above, the Applicants also failed to prove the potential and specific factual causal connection.
The existence of evidentiary damage
- In paragraph 37 of the application for approval, it is stated that "...The applicants will claim that the exact information regarding the data on the emission of pollutants is in the hands of the respondents themselves."
- In section 266, a quote was brought from a judgment in a class action (center) 16584-10-11 Peleg v. Perrigo Israel - where the issue of evidentiary damage was mentioned.
- In section 268, the judgment mentions other municipal applications 9936/07 Ben David v. Antebi, and it is argued in the suffix that: "...Not only did the respondents not share with the applicants, but they concealed evidence and findings, emitted harmful substances at night so that the residents of Haifa Bay would not see the clouds of harmful substances, and did not monitor the harmful substances knowing that they were"
- The Applicants reiterated their argument in section 332 to their summaries, while reiterating what was stated in section 266 of the motion for approval.
- The respondents referred to the non-applicability of the 'evidentiary damage' doctrine in the framework of paragraphs 521-541 of their summaries [chapter H2]. In a nutshell, they argue: we are not in a state of "evidentiary tie"; The applicants did not prove that they had an evidentiary difficulty that impaired their ability to prove the claim; The Applicants did not prove that the alleged evidentiary damage was caused to them by the Respondents and that it was foreseeable from the Respondents' point of view; and that the doctrine is not suitable for a claim of this type since the alleged damage caused by the respondents is combined with other damage that cannot be separated, and this is against the background of the existence of many sources of emissions – which are not related to the respondents – such as transportation, burning of waste and other industrial and natural sources.
The Legal Framework
- In Civil Appeal 326/24 HaEmek Medical Center v. Anonymous (published in Nevo, March 17, 2025), it was held, inter alia, that:
I will briefly note that evidentiary damage to prove a causal connection can be caused in two ways. The first method, sometimes referred to as 'separate evidentiary damage', is caused by damage to evidence that is separate and distinct from the act that is claimed to have caused the direct damage (for example, avoiding medical documentation that made it difficult to prove a causal link between failed medical treatment and the damage caused). The second method, known as 'inherent evidentiary damage', is characterized by the fact that the same tortious conduct that caused direct damage also caused evidentiary damage to prove the causal connection between it and that direct damage; in other words, "the evidentiary negligence and the negligence that created the damage are one" (see: Civil Appeal 3114/12 Sasson v. Ministry of Social Affairs, para. 27 [Nevo] (April 13, 2014); Guy Shani, "The Evidentiary Damage and Its 'Punishment': In Praise of the Transition from the Existing Model of Shifting the Burden to Models of Proportionality and Indexality," Mishpatim 41, 315, 321 (2011) (hereinafter: Shani); Ariel Porat Law of Torts I, 299, 308-309 (2013) (hereinafter: Porat)). (ibid., at length, paragraphs 27-28)