It should also be noted in this context that the data relevant to our case, i.e., the data on the environmental concentrations of pollutants monitored in Haifa Bay, are public and available data that are indisputably available to which the applicants had access [Libiki I, Chapter 4.1]; However, the Applicants (and the experts on their behalf) ignored these data, as stated, and this is sufficient to determine that there is no evidentiary tie in our case.
(ibid., paragraph 525 of their summaries).
- It appears from what is brought that the applicants did not prove that they suffered an evidentiary difficulty that impairs their ability to prove the application for approval (the claim). Nor was it proven by them that various sources of information were not available to them and that they made any effort to locate and access them.
- I am of the opinion that no weight should be attached to the factual statement that was not supported by the Applicants' affidavits or in the essential expert opinion on their behalf, according to which there is "...The inability to reliably examine in retrospect the side effects suffered by the residents as a result of air pollution."
- As stated above, the rule in question of evidentiary damage has implications only in the case of an "evidentiary tie". The existence of such a situation was also not proven by the applicants.
- As detailed at length above, the Applicants did not meet the burden of proving the causal connection (of all kinds). A situation of evidentiary tie-up regarding the 'causal connection' does not exist, and therefore, and even for this reason, there is no application to the exception of 'evidentiary damage'.
- Another condition that the applicants had to prove was that the alleged evidentiary damage was caused as a result of the respondents' negligent omission. The applicants did not meet this burden.
- Other Municipality Applications 8279/02 Ze'ev Golan v. Estate of Albert, IsrSC 62(1) 330, it was held, inter alia, that:
Since this is an exception to the general principle, it should be treated as such and interpreted narrowly, especially in view of the centrality of the rule from which it emerges. It is important to clarify once again that the transfer of the burden of persuasion to the defendant regarding a main and disputed fact entails a decisive impact on the fate of the proceeding and leads, for the most part, to the acceptance of the claim against him. Therefore, the existence of difficulties of proof at any degree is not sufficient in order for the burden to be transferred to the defendant's shoulders. When the situation in which the plaintiff finds himself makes it somewhat difficult for him to prove his claim, he should be expected to increase his efforts and try to get his hands on all the evidence that he can reasonably bring, in order to convince the court that he is indeed entitled to the relief that he demanded from the defendant. The burden of persuasion should be shifted only when the plaintiff, at fault of the defendant, finds himself at an impasse that makes it difficult for him – in a real and significant way – to prove one of the foundations of his cause of action (ibid., pp. 359a-c; Paragraph 23).