Further in the line of transfer of the place of hearing, it was determined: "A decision by way of a class action due to the creation of an environmental hazard of a strong or unreasonable odor is fair, especially in view of the status that is currently granted to a person's right to live in a proper residential environment." It is of the standard of caution expected of it in the circumstances of the case... There is also a causal connection between the deviation from the standard of care and the damage expressed in the loss of comfort" (section 38 of the judgment)
- At the end of section 340, the Applicants argued, inter alia, that "...It is clear that in the case at hand we are dealing with continuous daily emissions of 10 years with hundreds of deviations and fires in which some of the respondents admitted their responsibility when we are dealing with an odor hazard..." [See also the argument in the section 357 for the summaries in the middle].
- At the beginning of their summaries regarding the odor hazard, the respondents argued, inter alia, that "... In their summaries, the Applicants recalled to argue for the first time, and while expanding an improper front, to petition for an alternative remedy of compensation to the group for an 'odor hazard' (paragraphs 9, 340 and 357)."
- The court was even referred to a different appeal 78, in which it was stated that "for the sake of clarity, we note that in paragraph 264 of the application for approval, the applicants argued that air pollution (alleged and denied) amounts to an 'environmental hazard' as defined in the Prevention of Environmental Hazards (Civil Claims) Law, 5752-1992. However, nowhere in the application for approval is it claimed, not even a word, of the existence of an odor hazard by virtue of the Prevention of Environmental Hazards Law , 5721-1961 – as first claimed in the summaries. This is a distinct and separate cause of action, against which the respondents were not given a proper opportunity to defend themselves" [see section 340].
- It was also argued by the respondents, inter alia and in summary, that the applicants failed to prove a violation of the Kanovitz Law, which is a punitive law in nature, and the existence of an odor hazard. According to them:
Regarding an odor hazard, the Environmental Hazards Law refers to Section 3 of the Kanovitz Law, according to which "a person shall not cause a strong or unreasonable odor from any source, if it disturbs, or is likely to disturb, a person in the vicinity or passersby." In other words, the Applicants had to prove – both for the purpose of a cause of action by virtue of the Konowitz Law (at the level of proof of a reasonable possibility, as required at the preliminary stage of a motion to certify a class proceeding), and for the purpose of Item 6 of the Second Appendix to the Class Actions Law (and this is at a high level of strictness, as ruled in the Strauss Rule) – that this is a 'strong' or 'unreasonable' odor that creates a 'disturbance', and that it originated in the Respondents' factories and in the period relevant to the action (2008-2015)" [ibid., Section 433] (see also sections 434-446 of the summaries in detail).