Class Action (Tel Aviv) 11278-10-19 Yehoshua Klein v. Oil Refineries Ltd. - part 199

(See also: Civil Appeal 2775/19 State of Israel v. Anonymous (published in Nevo, January 3, 2021), para. 15).

743. As has been presented at length, the Applicants have not been able to meet the burden and the cumulative conditions imposed on them, for the purpose of shifting the burden of proof to the Respondents.
744. As a tort tort, the tort of mass exposure requires proof of all the relevant elements, including the existence of a tortious act, of the injured or injured persons, of damage and of a causal connection between the tort and the damage. This burden of proof, within the scope of the application for approval that was discussed before me, was not met by the applicants.
745. This is also how it was ruled in the Golan case above, inter alia, that:

The possibility of filing a class action for  the tort of mass exposure is based on Item 6 of the Second Addendum to  the Class Actions Law, which deals with "a claim in connection with an environmental hazard".   As a tort, the tort of mass exposure requires proof of the relevant elements, including the existence of a tortious act, of the injured or injured persons, of damage and of a causal connection between the tort and the damage (and it does not matter at this stage whether the tort of mass exposure is based on the tort of negligence, on the tort of breach of statutory duty or on a tort by virtue of  section 70 of  the Clean Air Law,  5768-2008; (ibid., paragraph 12).

746. In our case, and as detailed at length, the applicants in the present proceeding, which deals with the 'tort of mass exposure', have not been able to prove, inter alia, the existence of a tortious act, the existence of damage, and the existence of a causal connection between the tort and the alleged (non-pecuniary) damage.
747. Given all of the above, it is also understood that the Applicants have not been able to prove that the Respondents breached the torts of the framework, such as the torts of negligence and breach of statutory duty. Thus, for example, even if the court proceeded from the assumption that there was a duty of care on the part of the respondents towards the applicants, the applicants had to prove the breach of that duty – the element of negligence, and the damage caused by that breach, and thus they failed.  At the end of the day, the obvious conclusion is that  the Applicants have not been able to prove – for the purposes of the application for certification – negligent conduct on the part of the Respondents, which is conduct that deviates from  the standard of my grandfather.
748. The rule is that at the end of the examination process regarding the existence of a duty of care, it must also be proven – and this the Applicants did not do – that there is a causal connection between the negligence and the damage caused (see  section 64 of the Torts Ordinance).  This element is divided into the question of whether the negligent act or omission was a cause without which there is no causa sine qua non for damage (factual causal connection) and the question of whether negligence was the decisive cause of the damage, which is examined by means of the tests of expectation, risk or common sense (legal causal connection) (see Civil Appeal 243/83 Jerusalem Municipality v. Gordon, IsrSC 39(1) 142, 113; Civil Appeal 145/80 Vaknin v. M.M.  Beit Shemesh,  Piskei Din 37(1) 113, 134; Civil Appeal 3139/05 Kalfon v. Herzliya Local Planning and Building Committee (published in Nevo, 31 January 2008)).
749. I am aware of other arguments that were made by the parties, but I did not find it necessary to address them in view of all that was determined in the above judgment, and the result I have reached.

Conclusion

750. In Civil Appeal 729/04 State of Israel v. Kav Fisha in a Tax Appeal (published in Nevo, April 26, 2010), it was held, inter alia, that:

However, it has already been stated that "in order to be convinced that, prima facie, there is a reasonable possibility that material questions of fact and law will be decided in the action in favor of the class, the court is required to go into the thick of the matter and examine the claim on its merits, whether it reveals good cause and if there is a reasonable chance of a decision in favor of the plaintiffs" (Civil Appeal 6343/95 Avner Oil and Gas in Tax Appeal  v. Eban, IsrSC 35(1) 115,  118 (1999); See also, Civil Appeal 2967/95 Magen and Keshet in Tax Appeal  v. Tempo Beer Industries Ltd., IsrSC 51(2) 312, 327329 (1997); Civil Appeal Authority 8268/96 Reichert v. Shemesh, IsrSC 55(5) 276, 291 (2001); Civil Appeal 1509/04 Danosh v. Chrysler Corporation, paragraphs 1314 (22.11.07)).  An in-depth examination of the chances of success of the lawsuit is a very important task.  It should be remembered that the tool of a class action is powerful.  Aside from the advantages of this tool, it cannot be ignored that the mere approval of a motion to file a class action may create heavy pressure on the defendant.  Therefore, there is ample justification that already at the stage of the hearing of the application for approval, the court will be required to examine the issue of a prima facie right and the chances of success (ibid., paragraph 10 in the middle).

751. This was done in our case, taking into account the significant body of evidence brought before the court by the parties, already at the stage of the hearing of the motion for approval.
752. In view of all that has been stated in this judgment, I have found that the motion to certify the class action be rejected.
753. In summary, I have come to the conclusion that in the circumstances of this application for approval, the applicants failed in their work and failed to prove, to a sufficient extent and to the standard required for the application for approval before me, the existence of excess air pollution in Haifa Bay caused by the respondents, the existence of excess morbidity as a result, and all the more so they did not prove the existence of a causal connection between the two.
754. The applicants in this proceeding failed to prove and did not lay an evidentiary basis for the existence of damage. Neither damage of the type of infringement of autonomy nor any other damage that they claimed, a component that is necessary for the establishment of the alleged torts and for the approval of the management of the class action.
755. The scientific theories on which the Applicants' claims were based were rejected in the past outright, and it was determined that they were unfounded. Two of the experts – on behalf of the Applicants – in this motion for approval are the same experts who submitted an opinion in the fishermen's lawsuit, about whom the Supreme Court expressed decisively as detailed above.
756. Although the original application for approval (before it was amended) was filed a few months prior to the Supreme Court's judgment in the Kishon case, there was prima facie reason to expect that after the judgment was rendered, the applicants would consider a "new track" to withdraw their application or amend it on the professional-scientific level as required. But this is not the case.  Leaving the aforementioned opinion  and only these as they were, was a somewhat pretentious act on the part of the applicants.
757. The main differences between this proceeding and previous proceedings as detailed above are the choice of a class action rather than a class action, and alleged damages that are not pecuniary and not pecuniary bodily damage. However, these changes and differences are not enough, as the factual and scientific basis of the application for approval here lacks a basis.