Class Action (Tel Aviv) 11278-10-19 Yehoshua Klein v. Oil Refineries Ltd. - part 167

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In summary, according to the law in force today,  a class plaintiff who wishes to establish a claim for infringement of autonomy must first raise the claim of negligence on the part of the defendant and establish it as a matter of fact, and prove that as a result of this negligence, which was led to an improper motive, a significant violation of a person's autonomy was caused.  If the plaintiff succeeds in establishing this ground, the burden will shift to the defendant to prove that the members of the class, and at least some of them, did not experience negative feelings as a result of the violation of autonomy" (ibid., pp. 398-399)

618. Given all of the above, and as correctly held by the Haifa District Court in the Chevron case above, the alleged infringement of autonomy requires proof of three cumulative elements:
     1. Infringement of autonomy – In order to delimit the cases, it was held that only a violation of the core of the right to vote would entitle the plaintiff to significant compensation (see the Prinir case,  paragraphs 38 and 44; Kadosh, para. 39).
     2. Non-pecuniary damage – it must be shown that the infringement of autonomy caused subjective consequential damage (Civil Appeal 1535/13 State of Israel v. Ibie, para. 39 (September 3, 2015)). In order to award compensation for this damage, it is necessary to prove subjective consequential damage that is expressed in negative feelings such as: disgust, frustration, insult, shock, anger and anguish, and it is not sufficient to suffice with the negation of the autonomy of the will (see: Tnuva II case, paragraph 40; Civil Appeal 4333/11 Salomon v. Guri Import and Distribution in Tax  Appeal (March 12, 2014) (paragraphs 25 and 28; Prinir, paragraphs 38-44 (September 4, 2014); Civil Appeal 8266/22 Shmul v. Clalit Health Services, paragraphs 84-86 (November 21, 2022); Additional Civil Hearing 8266/22 Shmul v. Clalit Health Services (April 2, 2023)).

• Causal connection – In order to be entitled to compensation for infringement of autonomy, a causal connection must be indicated between the infringement and the non-pecuniary damage ( Salomon, para. 25).

(ibid., para. 54) (see also:   Class Action 22706-06-20 (Tel Aviv) Yakubovitz v. State of Israel (published in Nevo, July 13, 2025), para. 73) (hereinafter: "The Yakubovitz Case").

619. The applicants raised the claim of 'infringement of autonomy' within the scope of sections 265-268 of the application for approval. According to them, "...They have faced and are facing a real health risk" (Article 265).  In the other relevant sections above, they referred to case law:  Peleg class action; the Prinir case and  the Antebi
620. In paragraph 348 of the applicants' summaries, it was argued that "the claim that is sought to be approved is not based on actual bodily injury, but rather on the general damage caused by the infringement of autonomy."
621. In their affidavits of testimony, the Applicants claimed in the same manner, inter alia, that "...Ever since I learned of the health risks caused by air pollution as a result of the emission of hazardous substances from the industrial plants in Haifa Bay, I have been very anxious for my health" and that the knowledge that as a result of air pollution increases the chance of developing cancer, "...causes me great anguish, despair and great fear for my health" (see paragraph 7 of the affidavits of Klein and Brautman; Paragraph 5 of Blum's affidavit; Paragraph 8 of Krauss's affidavit [and also paragraph 6 of her affidavit]).
622. All the Applicants also referred in their affidavits to what was stated in Prof. Lin's opinion, which they said was produced for their review, and noted with regard to what was stated therein that "...This determination causes me to be extremely anxious that I am more exposed to cancer" (see paragraphs 10-11 of the affidavits of Klein and Brautman; paragraphs 8-9 of Bloom's affidavit and paragraphs 11-12 of Krauss's affidavit).
623. Other Municipality Applications 1535/13 State of Israel v. Ivy (published in Nevo, September 3, 2015) held, inter alia, that:

However, insofar as the protection of the right to autonomy is expressed in the granting of compensation in the tort field of law, the case law has limited the right to compensation in two respects.  First, it was ruled that only a violation of the core of the right and a material matter would entitle the plaintiff to significant compensation (Holy Matter, paragraph 39 of the judgment of Vice President E. Rivlin; Civil Appeal 4576/08 Atara Ben-Zvi v. Prof. Yehuda Hiss (February 26, 2012) (hereinafter: the Ben-Zvi case); the Hammer case, paragraph 71 of the judgment of Vice President Rivlin).  Second, it was ruled that compensation for infringement of autonomy will not be given as objective compensation for the infringement itself, and that "compensation for infringement of autonomy is given due to subjective consequential damage expressed in feelings of anger, frustration, and the like, negative feelings aroused by the tortfeasor's behavior" (Civil Appeal 10085/08 Tnuva Cooperative Center for the Marketing of Agricultural Produce in Israel in Tax Appeal  v. Rabi's Estate, (December 4, 2011), paragraph 40 of my judgment (December 4, 2011) (ibid.,  Paragraph 39).

624. Klein, Ms. Bloom and Mr. Brautman did not claim anything in their affidavit regarding the deprivation or violation of their freedom of choice.
625. Kraus noted in her affidavit that following the publications, she and her husband decided "...to move to an apartment in an area farther away from Haifa Bay" (ibid., section 6). She did not claim in her affidavit in a direct-positive manner that she was deprived of her freedom of choice or that he had been harmed.
626. Her interrogation in this context reveals a different picture regarding the motives for moving, and it turned out that the alleged pollution was not the only motive for moving:

Adv. Dr. Tal Rotman:          And why did you decide to move to your new apartment?