In the present case, the Applicants did not prove any breach on the part of the Respondents of the duty of disclosure towards them.
The odor hazard
- In the amended motion for approval, it was argued in chapter C, which deals with 'the size of the group', inter alia, that the court is asked to determine, in accordance with section 14(a)(3) of the Law, that the causes of action are, inter alia, "a violation of sections 1-6, 10, 8, 12, 13 of the Prevention of Environmental Hazards Law (Civil Claims), 5752-1992" (see section 6; p. 12).
- In section 264 of the motion for approval in the chapter relating to the "plaintiffs' claims", it is argued, inter alia, that "the Law for the Prevention of Environmental Hazards (Civil Claims), Road Accidents Without Bodily Injuries – 1992 states in the definitions section as follows: "Environmental hazard – air pollution, noise, odor, water pollution, seawater pollution, pollution by waste, pollution by pollutants, pollution by radiation, damage to the coastal cause, asbestos hazard, all when they are contrary to legislation, order, plan, business license or any other permit or license, or when they harm a person's health or cause real suffering to the person; In this regard, a 'plan' – as defined inthe Planning and Building Law, 5725-1965; There is no doubt that air pollution is an 'environmental hazard' as stated in the definitions section and there is no doubt that the respondents are the 'hazardous factor' as stated in the definitions section."
- Applicant 1, Yehoshua Klein, noted in his affidavit (marked A), inter alia, that "...Sometimes in the afternoon or when I drive towards the Krayot or Haifa I smell pungent odors of substances" (ibid., section 4) [see also paragraph 12 of the amended application for approval].
- Applicant No. 2, Naama Kraus, stated in her affidavit (marked B), inter alia, that "....Sometimes I smell a pungent smell of substances" (ibid., section 4) [see also paragraph 17 of the amended application for approval].
- Applicant 4, Eliezer Brautman, stated in his affidavit (marked D), inter alia, that "...Sometimes at night I smell pungent odors of substances" (ibid., paragraph 5) [see also paragraph 5 of his second affidavit – marked D1; Section 32 of the amended application for approval].
- Alternatively, the court was asked that "...Even if the Honorable Court determines that the Applicants have not been able to prove the level of air pollution and the damage caused by the infringement of autonomy, it is in the discretion of the Honorable Court to award compensation to the group in connection with an environmental hazard as defined in the Prevention of Causal Hazards Law , 5721-1961 (hereinafter – the Law) with respect to air and odor pollution, as ruled in Class Action (Hai District) 11781-05-09 Lahat v. Carmel Chemicals inTax Appeal (Nevo - December 2, 2010) "The Applicants have a personal cause of action due to a breach of the statutory duty set forth in Section 3 of the Hazard Prevention Law, due to a strong or unreasonable odor hazard" (see paragraph 9 of the summaries).
- The Applicants argued regarding the odor hazard, alternatively, in paragraph 9 of their summaries, inter alia:
...According to the alternative applicants, even if the Honorable Court determines that the Applicants have not been able to prove the level of air pollution and the damage caused by the infringement of autonomy, it is in the discretion of the Honorable Court to award compensation to the group in connection with an environmental hazard as defined in the Prevention of Causal Hazards Law , 5721-1961 (hereinafter – the Law) with respect to air and odor pollution, as ruled in Class Action (Hai District) 11781-05-09 Lahat v. Carmel Chemicals inTax Appeal (Nevo - December 2, 2010) "The Applicants have a personal cause of action due to a breach of the statutory duty set forth in Section 3 of the Prevention of Hazards Law, due to a strong or unreasonable odor hazard" (p. 20 of the judgment) This determination was based on the testimonies of "the Applicants that they do indeed suffer from a pungent odor originating from formaldehyde, as they wrote in their affidavits...")p. 19 of the judgment) and the Haifa District Court also relied on the ruling of the Supreme Court inCriminal Appeal 151/84 Israel Electric Company in Tax Appeal v. Presht, IsrSC 39(3) 1 when it ruled: "The conclusion that arises from the Supreme Court's ruling is this: Although the regulations do not specify what constitutes a "strong smell" or an "unreasonable" odor, the court can determine this on the basis of the evidence brought before it and according to the test of the "reasonable person" (p. 19 of the judgment). In the present application, the four applicants stated and reiterated this in their cross-examination about the odors originating from the respondents' factories, which they even noticed a yellow cloud accompanying them. Also inCriminal Appeal 37367-11-14 (Beer Sheva District) Compressed Crane and Services Ashkelon (1979) v. The Ministry of Environmental Protection (Nevo, January 10, 2015) ruled: "I did not find any substance in the argument that it is not possible to convict the said offense without scientific evidence or an expert's opinion... There is no doubt that any person can attest to the presence of a strong or unlikely smell that may disturb a person nearby.
- Thus, it was also argued by the Applicants in their summaries, in the causal connection chapter, inter alia, that "...It is also sufficient that they caused the applicants unpleasant odors that harmed their autonomy, as ruled by the court..." (ibid., Reshet Chapter g).
- In paragraph 340 of their summaries, the Applicants argued, inter alia, while referring to a class action (Haifa) 11781-05-09 Lahat Estate v. Carmel Chemicals in a Tax Appeal (published in Nevo, March 4, 2012), that in the aforementioned judgment it was held, inter alia:
When the court comes to determine the amount of compensation, it must therefore take into account the argument that there are apparently other sources of the distribution of the odor hazard, in addition to the defendant, in order to determine the amount of compensation that should be obligated to the defendant for the odor hazard that creates discomfort" (p. 1 of the judgment).