In order for an injured person's right to choose, which means an infringement of his autonomy, it is not enough that he became aware of an infection, that he heard of an infectious cause or that he saw a factor that might cause the infection. It is also not enough to feel fear or suffer from negative feelings and the like. The injured party must indicate that the pollutant has violated his right to choose. Thus, for example, in Civil Case 66434-06-19 Gibran v. Strauss Ice Creams in a Tax Appeal (February 25, 2023), I noted that the members of the group who may be included in the list of those injured by the ammonia leak are only those who were present in the leak area that was closed to traffic by the authorities. Not everyone who feels negative emotions, disgust, fear, etc., as a result of knowing about the cause of the infection, will be included in the group, but it is required that he be exposed to the causes of the infection on one level or another, or that the exposure will harm him in a certain way, and will be expressed in the actual violation of his right to choose to avoid the exposure.
Moreover, in order for the class members to have a cause of action for compensation for the violation of their autonomy, they must also convince by evidence of the existence of the alleged subjective damage (see also Civil Appeal 887/19, supra, paragraphs 84-86; Additional Civil Hearing 8266/22 Shmul v. Clalit Health Services (April 2, 2023); Y. Amit, "The Wild Horse of the Infringement of Autonomy," Strasberg-Cohen 482, 485 (A. Barak, Y. Zamir, A. Cohen, M. Savorai, and A. Afari, eds., 2017)) (ibid., paragraphs 65-67).
- In order to compensate for the infringement of autonomy, it is necessary to point out additional subjective consequential damage to the very infringement of autonomy. And as it was ruled, "... 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" (see Civil Appeal 10085/08 Tnuva - Cooperative Center for the Marketing of Agricultural Produce in Israel in Tax Appeal Rabi's Estate (published in Nevo, December 4, 2011), para. 40).
- As detailed throughout the judgment, the Applicants were unable to prove at the required level that they were exposed to hazardous environmental air, as a result of the emissions that emanated from the Respondents' factories. Here, too, two should be emphasized: 1. The emissions at the outlet of the chimneys [which should be reduced as much as possible, and it seems that this has been done over the years], are not breathed by the residents in their places of residence. In the environmental air monitoring stations, all sources of emission of pollutants (factories, transportation, port, power plant, etc.) are recorded and In the absence of proven exposure to air pollution emanating from the factories, the Applicants are unable to point to subjective damage caused to them or to the members of the class, and to the violation of their autonomy, since the (alleged) infringement of autonomy is not enough, but a subjective result is required that does not exist in our case (see also: Chevron Case, supra, section 53; Class Action (Be'er Sheva) 2133-08-20 Sapel v. Paz Ashdod Refinery inTax Appeal (published in Nevo, August 29, 2023) paragraph 9 at pp. 11-12) [see also sections 321-331 of the Respondents' summaries as well as paragraphs 359-362].
- As it was determined in the Shemen case above, and the words have good force in our case, "...These are general feelings that are unlikely to indicate damage as a result of the exposure. A general statement of fear and anger is not sufficient to meet the requirement to prove damage as a result of the violation of the right to choose, especially when no external evidence has been brought to prove the claim, no evidence of complaints has been brought from real time, and so on" (ibid., section 68).
- The applicants argued in paragraph 350 of the summaries on their behalf, inter alia, that "...Even such a health risk experienced by the applicants constitutes an infringement of the autonomy of the individual" (see also paragraphs 315 and 332).
- A health risk has not been proven by the applicants with real scientific-medical evidence. Above all, the argument should be rejected. As it was held in the Golan case above, in Israeli law, the position of risk alone was not recognized as establishing liability in torts, and it was ruled in this context:
You do not have a tort that does not begin with the creation of a risk, but as a rule, and in the tort of negligence in particular, tort liability is not imposed for the creation of a mere risk" (Civil Appeal 7550/08 East London College in Israel v. Sethon, para. 3 (June 10, 2010)) (ibid., para. 21).