"In a situation of evidentiary tie, a decision in favor of the plaintiff, which will be obligated following the transfer of the burden of persuasion to the defendant, will correct this breach and restore equality to its place.
[....]
A judge acting according to it [according to the evidentiary damage rule – section C] will of course be required to check, in any situation of an evidentiary case, whether this situation was caused by the defendant's negligence. In addition, the judge will be required to check, wherever he finds that there is evidentiary damage, whether this damage has created uncertainty, and with it an evidentiary tie...
[....]
The operation of the proposed rule is subject to limitations, and therefore it must be observed as a residual rule. First, when it is not an evidentiary case, the proposed rule does not apply. This rule cannot help the plaintiff that the probability of his claims, after he has suffered evidentiary damage, is less than the probability that supports the defendant's thesis" (ibid., [10], at pp. 247-249) (ibid., para. 11).
(See also: Civil Appeal 2809/03 Anonymous et al. v. Hadassah Medical Association et al. (published in Nevo, 7 February 2005), para. 19; Civil Case (Haifa) 21843-08-24 Anonymous v. Safadi (published in Nevo, March 24, 2024) para. 56).
Discussion and Decision
- At the outset, we will emphasize the customary halakha according to which "...In order to shift the burden of persuasion according to this doctrine, the plaintiff in tort is required to indicate the existence of two cumulative conditions: first, he must show that he has indeed suffered evidentiary damage that impaired his ability to prove his claims; Second, it is required that this evidentiary damage was caused as a result of the defendant's negligent omission (see, for example, the Dhaher case, paragraphs 19-21 and also see Civil Appeal 6732/97 Abu Al-Ash v. State of Israel, para. 9 (15 March 2006))."
- We will preface by saying that the applicants failed to prove the two cumulative conditions mentioned above.
- In paragraph 266 of the Motion for Approval, relying on a class action (Center) Peleg, the Applicants argued that: "...Similarly, in our case, the very existence of uncertainty among the residents of Haifa and the surrounding area regarding the performance of regular monitoring, emissions at night, constitutes a violation of autonomy, as well as the inability to reliably examine the side effects suffered by the residents as a result of air pollution and to examine the causal link between air pollution and morbidity constitutes evidentiary damage."
- This is an argument that was not substantiated in the applicants' affidavits, let alone by their evidence. Apart from the claim in the statement of claims, no real evidence was brought by the Applicants as to the alleged 'uncertainty' of the residents of Haifa "...As for carrying out regular monitoring." Didn't the applicants or the experts on their behalf try to examine the issue of monitoring, and to present the results of the monitoring carried out in the Gulf area over the years and to prove any alleged failures therein?
- In this regard, see also Civil Case (Be'er Sheva) 1069/07 to Danny v. Bromine Compounds in a Tax Appeal (published in Nevo, 9 January 2013), where we ruled, in a manner appropriate to our case, inter alia, that "...It is not clear how the plaintiffs can claim evidentiary damage when they did not even bother to present any data on the level of air pollution during the years in which regular environmental monitoring was carried out in the Ramat Hovav area. Nor did the plaintiffs show that they made any effort to alleviate the ambiguity regarding the state of air pollution in the years in which monitoring was not carried out with the help of any possible assessments" (ibid., 80 in the middle).
- In this context, I also accept the Respondents' argument that:
A distinction must be made between monitoring emissions from the respondents' facilities to the open air and environmental monitoring, which examines the concentration of the pollutant in the air at a given moment – and this is the relevant information for our case..., emissions monitoring in the respondents' facilities does not teach anything about the environmental exposure, because the air that comes out of them disperses, swirls, changes, evaporates and is joined by emissions from other sources. Therefore, it is clear that the alleged lack of emissions data of the respondents is not the factor that allegedly deprived the applicants of the ability to prove the element of causal connection in our case.