Class Action (Tel Aviv) 11278-10-19 Yehoshua Klein v. Oil Refineries Ltd. - part 3

As it appears from the aforesaid, the statutory requirement for the existence of a class plaintiff with a personal cause of action is a "feature" and not a "bug".  This Court noted the need to strictly insist on the requirement for the existence of a personal cause of action and that the purpose of section 4(a)(1) is "to distinguish the class plaintiff's status for those with personal entitlement" (Civil Appeal 6979/20 Hanuka v. Harel Insurance Company Ltd., paragraph 69 of the judgment of Justice E. Stein (January 30, 2023)).

(ibid., paragraph 8).

And later on -

... In summary, I do not believe that  the Class Actions Law allows for the acceptance of a motion to certify a class action in the absence of personal causes, and therefore it is not possible to conduct a class proceeding for bodily injuries that are alleged to have been caused to an indistinguishable group of the public.  Moreover, recognition of this possibility requires clarification of complex questions in the field of vague causation, and the absence of such a hearing also justifies not recognizing at this stage a cause of action in the circumstances of our case.

(ibid., paragraph 36).

23. It was emphasized by the applicants that their application does not relate to the (alleged) injuries they experienced inA. due to polluting emissions. Thus, for example, it was argued in section 262 of the motion for certification that "...Because the Representation Applicants do not pretend to sue for physical damage, even though they have suffered a DNA change, and they reduce their claim to negligence, breach of statutory duty, infringement of autonomy..." (See also section 315 in their summaries).
24. In paragraph 22 of the applicants' summaries it was argued, inter alia, that "... Hence, as a result of the air pollution caused by the respondents, the applicants suffered real physical damage due to a change in the operation of the DNA..." In section 325 of the Sifa it is argued, inter alia, that "...The application in this case was submitted within a few months from the day it was discovered to the applicants from the experts in this application that there had been hidden damage caused by a change in the DNA."
25. An examination of the applicants' affidavits shows that they are deducing the damage caused to them "... which is expressed in a change in the proper operation of the DNA", from what was stated in Lin's opinion that was invented for their review. Prof. Lin confirmed in his interrogation that he did not know the names of the applicants and that "... I didn't speak, I didn't check and I didn't check any of the plaintiff's medical documents."  It therefore emerges that there is no appropriate medical documentation or medical opinion to support the claim raised by the Applicants (alma), according to which there has been a change in DNA.  theirs.  Therefore, the court will ignore it and will not attribute weight to it.
26. In summary, within the framework of the application for approval, the petitioners are suing for monetary compensation for damage caused by infringement of autonomy It has not been proven by the Applicants that the alleged air pollution hazard (emissions) caused them harm to their health or caused them real suffering, as opposed to the infringement of autonomy.
27. It should also be noted that the period relevant to the application for approval is between the years 2005 and 2015 (see section 262 of the application for approval), although in the affidavits of the applicants in the 'Group Definition' section, we are talking about a period from 2008-2015 and mainly from 2008-2010.
28. The amended application for approval was supported by the opinions of three experts: Zamir Shlita, a medical microbiologist, consultant on chemical and electromagnetic environmental hazards (main opinion and supplementary opinion - Appendices 13 and 13.1); Prof. Shai Lin, epidemiologist, public health expert and medical administration expert (main opinion and supplementary opinion - Appendices 14 and 14.1); Prof. Molly Lahad, a senior expert medical psychologist, and Mr. Dima Leikin, who was a doctoral student in the Department of Emergency Medicine at Ben-Gurion University  of the Negev  at the time of the opinion (Appendix 4.2).
29. The sources on which the Applicants rely in support of their claims in the application for approval can be divided in principle into three types: Expert opinions as stated in section 28 above, 2. Documents of Prof. Itamar Grotto (who served at the time as head of the Public Health Services in the Ministry of Health) [Appendices 4 and 4.1] and of the Ministry of Environmental Protection, 3.  Publications on the Internet.
30. With regard to the various documents [type no. 2] as stated above, we are dealing with the following:
    1. A letter dated April 12, 2015 sent by Prof. Itamar Grotto (hereinafter: "The First Grotto Letter") (Appendix 4 to the Request for Approval) to Ms. Shlomit Chen, National Appeals Officer (Senior Coordinator) in the National Planning Institutions Division.
    2. Position paper on morbidity in Haifa Bay from December 15, 2015 (hereinafter: the "Second Grotto Report") (Appendix 4.1 to the Request for Approval). The position paper was written by Prof. Grotto and four others.

• Report of the Ministry of the Environment - "Characterization of the Air in Haifa Bay - October 2009 and March 2010" (Appendix 3 to the Request for Approval, by A. Trachtman and K. Kazamel) [see at length paragraphs 495-500 below].

1. Report "Emissions and Air Quality in Haifa Bay and the Surrounding Area – A Situation Report 2014" by the Ministry of Environmental Protection, Air Quality and Climate Change Division (Appendix 11 to the application for approval, by A. Trachtman and L. Cordova) [see in detail paragraphs 486-494 below].

Online Publications

31. The applicants attached many publications from the Internet, the print and digital press, relating to air pollution in Haifa Bay. Among other things, an article entitled "Air Pollution in Haifa Bay" was attached from a website called "Eco-Wiki" (Appendix 1 to the approval request), in which information regarding types of air pollutants, increased morbidity and mortality in the Haifa area and the effects of air pollution on morbidity was presented. The information includes references to various publications that were not attached to the request for approval.
32. In addition, the Applicants referred to a document entitled "Air Pollution and Public Health – The Case of Haifa Bay and Acre – A Situation Report 2005" (Appendix 2 to the Request for Approval, by G. Karikon et al.), which was prepared by the "Coalition for Public Health".

The Legal Argument in Summary

33. According to the Applicants, over the years, the Respondents emitted prohibited and life-threatening substances beyond the permitted amount, and as a result, caused the plaintiffs to develop various types of cancer to the point of danger of death, or caused an increased risk of developing various types of cancer, to the point of life-threatening.
34. It was also claimed that the respondents knowingly misled the applicants by knowing that they were emitting hazardous substances in excess of the permitted amount, thereby harming public health to the point of endangering life.
35. According to the Applicants, the Respondents violated their autonomy, because by deliberate deception they caused air pollution, and as a result, the Applicants developed life-threatening cancer or endangered the Applicants' lives by the possibility of developing life-threatening cancer. In this way, the applicants, beyond the physical illness, have caused feelings of fear, anxiety, despair, insecurity, uncertainty about the future of their health, and more.
36. It was argued that our case is similar to the circumstances of the case discussed in other municipal applications 1338/97 Tnuva v. Rabi (published in Nevo, May 19.03) (hereinafter: the "Tnuva Case"), where it was held that non-pecuniary damage of the type of negative feelings is prima facie compensable damage, and that deception regarding the content of milk is prima facie infringement of the autonomy of the individual, because consumers have the right to determine what they put in their mouths and bodies and what they will avoid. If this is the case, it was determined in relation to a food product with silicone and when the class members did not suffer any real damage, all the more so in our case when it comes to exposure to cancer or real cancer morbidity and when the applicants suffered heavy damage, but chose to limit their claim to the non-pecuniary part.
37. According to the applicants, all the residents of Haifa and its surroundings were deceived in the years 2005-2015.
38. The applicants do not claim for actual physical damage, but rather reduce their claim to negligence, breach of statutory duty, mental anguish, anxiety, pain, and suffering to the residents of Haifa and the surrounding area, who were forced to be exposed to air pollution and as a result to a significant risk of developing life-threatening cancer, heart attack, stroke and lung disease. The Applicants place the damage, to each member of the group on the grounds of infringement of autonomy, in the sum  of NIS 28,000.
39. The application for approval was filed in accordance with Item 6 of the Second Addendum to the Class Actions Law, 5766-2006, according to which it is permissible to file a class action "in connection with an environmental hazard against the hazard party; For this purpose, "hazardous factor", "environmental hazard" – as defined in the  Prevention of Environmental Hazards Law."
40. It was argued that in our case, air pollution is an environmental hazard and the respondents are the cause of the hazard. According to the applicants, the very existence of uncertainty among the residents of Haifa and the surrounding area regarding the performance of regular monitoring constitutes a violation of autonomy. In addition, the inability to reliably examine the side effects suffered by residents as a result of air pollution, and to examine the causal link between air pollution and morbidity, constitutes evidentiary damage.  In this regard, the Applicants referred to the judgments in Class Action  (Center) 16584-10-11 Peleg v. Perrigo Israel Pharmaceuticals in  a Tax  Appeal (May 17, 2015); Civil Appeal 8037/06 Barzilai v. Prior (Hadas 1987) in  a Tax  Appeal (September 4, 2014); and Civil  Appeal 9936/07 Ben David v. Antebi (February 22, 2011).
41. The Applicants further claimed that the Respondents concealed evidence and findings from them, and even emitted harmful substances at night, so that the residents of Haifa Bay would not see the clouds of harmful substances, and did not monitor the harmful substances even though they knew they were harmful.
42. Under the heading "Causal Connection", the Applicants cited entire parts of judgments dealing with the causal connection and the gap between the level of scientific proof required in the world of medicine and science and the level of proof required in civil law. Thus, another civil hearing was brought in 5707/04 State of Israel v. Krishov (January 5, 2005); High Court of Justice 1199/92 Lusky v. National Labor Court (November 22, 1993); Miscellaneous Applications Civil (Tel Aviv District) Arges v. Tnuva (September 13, 2009); and Civil Appeal 10262-05 Aviv Legal Services in Tax  Appeal v. Bank Hapoalim Ltd., Chief Management (December 11, 2008).  Apart from these case law quotations, the Applicants did not add any arguments.
43. According to the Applicants, the Respondents should be regarded as wrongdoers jointly for the purposes of Section 11 of the Torts Ordinance, so that each of them contributed its share to the pollution. Therefore, even if the contribution of each factory to the pollution was small, together a synergy was created and the joint pollution that was created caused morbidity among the residents.
44. The Applicants further claim that the Respondents, by their actions and omissions, breached their duty to them and caused them damage, and this is sufficient to compensate them, and even if they are unable to prove the factual causal connection, there will be a probabilistic connection to the damage, in light of what was established in Additional Civil Hearing 4693/15 Carmel-Haifa Hospital v. Malul, IsrSC 57 (6) 385 (hereinafter: "the Malul Case"). In addition, the Applicants claim that in our case, the exceptions set forth in the Torts Ordinance  are fulfilled – the duty of evidence of negligence in respect of dangerous things (section 38) and the duty of evidence of negligence when it attests to itself (  section 41).
45. Regarding the statute of limitations, the Applicants claim that the lawsuit was filed only now, even though the air pollution began decades ago, because they did not know of the causal link between the air pollution from the factories and the increased morbidity of cancer, heart and lung diseases in the Haifa area and its surroundings. The applicants were exposed to this causal connection only recently, with the media publications. Thus, it was argued that only in the publication of the first Grotto letter of April 12, 2015, was a causal link established for the first time between the pollutants emitted by the Respondents' factories and the morbidity of cancer, heart attack and stroke, after in the two proceedings that were conducted in connection with Kishon (Civil Case (Haifa District) 732/01 Tuli v. Haifa Chemicals in Tax Appeal (published in Nevo, November 3).13) (hereinafter: "the Fishermen's Claim") Civil Case  (Haifa District) 972/00 Atzmon v. Haifa Chemicals in  a Tax  Appeal (published in Nevo, June 17.13) (hereinafter: "the divers' claim"))  The courts rejected the claims, inter alia, in the absence of a causal connection.
46. According to the report "Emissions and Air Quality in Haifa Bay and the Surrounding Area – A Situation Report 2014" by the Ministry of Environmental Protection, Air Quality and Climate Change Division, the population of Haifa Bay is 530,000 people. The calculation of the damage was made in light of  the Road Accident Victims Compensation  Regulations (Calculation of Compensation for Damage Other than Pecuniary Damage), 5736-1976 (hereinafter: the "Road Accident Compensation Regulations").
47. According to Regulation 2(b) of the Disaster Relief Regulations, "if the injured party was not entitled to compensation under sub-regulation (a) or suffered damage other than pecuniary damage that is not covered by that regulation, the amount of compensation will be the amount agreed upon or will be awarded, provided that the amount does not exceed ten percent of the maximum amount." An average calculation of the age of people exposed to pollutants for 10 years from 2005 will be calculated according to the ages of 20 to 80, i.e. an average age of 50. The calculation of pain and suffering according to the Regulations for the age of 50, when the date of the accident is the date of publication of the first Grotto letter – April 12, 2015 – amounts to the sum of NIS 14,000 per group member.
48. In tort claims rulings, the courts rule in multiples of two or three from the amount of pain and suffering in the court, and therefore the amount of pain and suffering for each member of the class in our case is NIS 28,000; and for all members of the class – NIS 14,840,000,000.
49. In a survey conducted by the Metagam Institute for the Calcalist newspaper, it was determined that 90% of the respondents take into account environmental hazards when they come to purchase an apartment, and although if such a survey were to examine anxiety about cancer, heart attack and stroke, the applicants are satisfied with the results of this survey, and therefore the damage to the group is only 90%, and stands at a total of NIS 13,356,000,000.

The Answers to the Request for Approval in the Summary of the Saying

50. In the court's decision of January 25, 2016, the parties' agreement was given judicial validity according to which at this stage of the hearing of the application for approval, the respondents will be exempt from attaching expert opinions and evidence regarding the personal liability of each respondent on its own.  Accordingly, the respondents focused on general arguments that they all shared.  Therefore, I will address the respondents' arguments together and in a nutshell.
51. The existence of excess air pollution in Haifa Bay was not proven - the applicants did not present scientific evidence to prove the alleged pollution. It is not correct to learn from the test data close to the source of the emissions to the air quality that people actually breathe, because there is a difference between emission standards and environmental standards. In addition, the average annual concentrations of the monitoring stations in Haifa in relation to most materials are well below the threshold values.  In relation to the other substances, these are specific and minor abnormalities that cannot be linked to negative health effects.  Air pollution in Haifa is affected by many variables, including the transportation system, the Haifa port and vessels, the electric company's power plant, the airport, and topography and climate data unique to the region.
52. Based on the available data, industrial activities in Haifa do not cause higher levels of air pollution than in similar European and Israeli cities, and air pollution levels do not increase health risks in Haifa. On the contrary, according to recent data, not only is there no unusual air pollution in Haifa, but the air quality indices in Haifa are exceptionally exceptional compared to other cities in Israel.
53. Excess morbidity in Haifa Bay has not been proven – comparing morbidity in the Haifa area to the national average is irrelevant due to the large variation between cities and towns in Israel. From an epidemiological point of view, Haifa should be compared to areas similar in population size and demographic data. Indeed, a comparison between Haifa and Tel Aviv shows that the morbidity and mortality rates in Haifa are lower or similar to those in Tel Aviv.  No admissible opinion or evidence was presented regarding the rate of excess morbidity claimed.
54. No causal link between air pollution and excess morbidity has been proven – the first Grotto letter of April 12, 2015 lacks  scientific basis, relies on invalid data, ignores long-standing data that appears in official state publications, and as such does not provide information that could attest to a connection between morbidity in Haifa and air pollution or any other environmental factor.  The letter is also not considered an expert opinion, and therefore all the studies mentioned in it are hearsay testimony.
55. The second grotto paper of December 15, 2015 is also not admissible evidence. It includes hearsay testimony and conclusions that do not amount to an expert opinion.  The report's conclusions are based on studies based on inconsistent data and an inappropriate research structure, and therefore do not indicate a causal link between air pollution and excess morbidity.  The report also does not meet the conditions set out in the law in order to be an "institutional record" as the applicants claim.
56. The Ministry of Health itself did not adopt the second Grotto report, and even rejected it – after the publication of the report, the Ministry of Health appointed a scientific committee of experts to examine the issue of air pollution in Haifa Bay, excess morbidity and the connection between them. In its August 2016 opinion, the  Scientific Committee of Experts completely canceled the main contents  of the second Grotto report.  The conclusions and recommendations of the Scientific Committee of Experts were adopted by the Minister of Health and the Minister of Environmental Protection.
57. No independent liability was proven for each respondent for causing the air pollution, but rather an attempt was made to attribute collective liability to all respondents. In addition, the Applicants failed to present the harmful substances that they claim cause the air pollution claimed and the additional morbidity. A comparison between the concentration of substances in the air in the Haifa Bay area and the toxicity standards and environmental standards in Israel shows that the potential for negative health effects as a result of air pollution is low.
58. The expert opinions on behalf of the Applicants do not meet the requirements set out in the Supreme Court's ruling in the matter of the Kishon Claim (Civil Appeal 6102/13 Atzmon v. Haifa Chemicals in a Tax Appeal (September 24, 2015) (hereinafter: the "Kishon Case").  This is a recycled opinion from the fishermen's lawsuit, which was rejected in a sweeping manner.  In addition, entire parts of the opinion remained as they were submitted in the fishermen's lawsuit and were not amended.  In addition, the reviews include long quotes from the Internet, in a way that makes it impossible to consider them an acceptable expert opinion.
59. The evidentiary mitigations that the applicants petitioned to apply – repeated bias, the exceptions to the transfer of the burden of the burden of proof, the evidentiary damage, and the wrongdoers together – were argued in general, vague and without detail. Some of the concessions even contradict each other. In addition, it was argued that each of the requested concessions should be rejected for a variety of reasons.
60. The law is that the application for approval should be rejected even on the grounds of the statute of limitations, when the limitation period has already passed, even according to the Applicants themselves. The knowledge of the causal connection was also known – at least a clue or a presumption of knowledge – at least from the years 2004-2005 or at the latest 2007, and not only at the time of the publication of the first Grotto letter of April 12, 2015, as the Applicants claim.
61. The respondents have the protection of legality set forth in section 6 of the Torts Ordinance. The respondents acted in accordance with the provisions of the law, the instructions of the Ministry of Environmental Protection – the regulator in our case, licenses and permits that were granted to them, and therefore they are protected. Moreover, since the regulator initiated a  multi-year plan to reduce emissions in Haifa Bay in 2009, there is no reason to approve the class action lawsuit.
62. There is no cause of action under the Prevention of Hazards Law. The existence of air pollution has not been proven, and even if there was air pollution, it has not been proven that it is in violation of the law or that it harms health or that the respondents are the ones who cause it.  Proof of a factual and legal causal connection is required, and the applicants did not meet the burden imposed on them.  The other grounds are also not met.
63. With regard to damage, it was argued that the risk of future damage is not compensable damage; Because there was no violation of autonomy at all; that an infringement of autonomy is recognized as a head of damage only and not as a tort that stands on its own; and that no compensation is awarded for infringement of autonomy when no damage has been caused.
64. According to the respondents, the applicants' affidavits do not support the factual claims made in the application for approval, and do not relate specifically to which of the contaminants, which of the diseases, and which of the respondents.
65. Finally, the respondents argued that the conditions for certifying the class action were not met, inter alia, due to the material difference between the class members that requires an individual examination regarding the claim of deception, the degree of exposure, the source from which they were exposed to the contaminated materials, the date of disclosure that has implications for the question of limitation, the alleged damage, and the personal situation of each of the class members.
66. The responses to the approval request were supported (originally) by the opinions of six experts: Shari Libiki, an expert in analyzing air monitoring data; Dr. Joseph Rodriques, an expert in toxicology, chemical risk assessment and public health; Prof. Eitan Friedman, an expert in internal medicine and medical genetics with a specialization in oncogenetics; Prof. Gad Rennert, epidemiologist; Dr. Julie Goodman, an expert in epidemiology and toxicology; Dr. Kfir Yifrach, Clinical Psychologist.
67. On December 5, 2023, counsel for the respondents filed a notice stating that Dr. Rodriguez would not be able to testify in the case due to his advanced age, retirement, and due to his being a foreign resident. It was claimed that Dr. Rodriguez did not expect that the investigations into his affidavit would be conducted about eight years after his opinion was submitted.  First, the respondents requested that Dr. Julie Goodman "adopt" Dr. Rodrigues' opinion.  This request was rejected by me in a decision of December 14, 2023.  In that decision, I instructed the respondents that insofar as they were interested in the content of Dr. Rodriques's opinion, Dr. Goodman must submit a separate appropriate opinion on her behalf.
68. In my decision above, I emphasized that Goodman is prohibited from changing in the new opinion from what was stated in Dr. Rodriques' original opinion (except for the possibility of shortening).  Following this, on January 14, 2024,  the Respondents submitted two additional opinions on behalf of Dr. Goodman, in place of the opinion of Dr. Rodrigues.  No arguments were heard about the differences between the opinions.

The Applicants' Response to the Respondents' Answers in a Nutshell

69. According to the applicants, the second Grotto report is unequivocal and clear, and its conclusions contradict all the expert opinions on behalf of the respondents. According to the report, there is unusual air pollution in Haifa Bay; There is an excess morbidity compared to the national average of heart disease, respiratory diseases, and exacerbation of asthma in children and cancer in adults; And there is a causal relationship between exposure to air pollution and certain diseases in certain groups.  Both the first grotto letter and  the second grotto report  are institutional records and should therefore be accepted as evidence.
70. Regarding the question of whether there is excess air pollution in Haifa, the respondents' argument that Haifa should be compared to Tel Aviv is unreasonable, because most of the air pollution in Tel Aviv is based on transportation, while in Haifa most of the air pollution originates from industrial plants. In addition, this claim contradicts Prof. Grotto's opinion and the findings of two reports by the Ministry of Environmental Protection.
71. Attached was also a letter from the Director General of the Ministry of Environmental Protection dated April 22, 2014, entitled "Review of the Status of Haifa Bay Factories" (Appendix 20 to the Response), from which we learn, according to the Applicants, that there is excess air pollution in Haifa and that the Respondents are responsible for this air pollution. According to them, this letter also constitutes an institutional record.
72. In addition, on April 26, 2021, the Prime Minister's Office published the "Draft Recommendations of the Committee of Directors General for the Development and Advancement of Haifa Bay," which is also an institutional record. According to what is stated in this draft, Haifa Bay is one of the most prominent centers of environmental pollution in Israel. According to data from the Ministry of Environmental Protection, a high load of pollutant emissions into the air has been measured in the Haifa Bay area for decades, and in the BAZAN complex, deviations in the emission of benzene, a pollutant that is defined as carcinogenic to humans, are measured.  Meanwhile, Ministry of Health data indicate a consistent increase in morbidity in Haifa Bay in a number of diseases related to air pollution, including respiratory diseases, malignant diseases, and birth defects.
73. The Applicants also refer to the State Comptroller's report from 2019, which was submitted after the submission of the amended application for approval. According to the applicants, the State Comptroller's report contradicts all the findings and conclusions of the expert opinions on behalf of the respondents and explicitly states that there is an excess morbidity of cancer, heart disease and respiratory diseases in the Haifa district, and an exacerbation of asthma in children. In addition, at least some of the respondents have already been convicted and paid large sums of money, as fines and compensation, for the air pollution they caused and harm to the health of the residents.
74. Regarding the question of causal connection, Prof. G. Rennert's opinion rejecting the causal connection contradicts the findings established in the second Grotto report and in the  reports of the Ministry of Environmental Protection.  The respondents' comparison between the Kishon case in the Supreme Court and our case, with regard to causal ambiguity, is  not acceptable, because in the Kishon case in the Supreme Court it was determined when this doctrine can be used, and it is appropriate for our case.  The principle of "the polluter pays" stated in the case of the Kishon in the Supreme  Court also applies in this case.
75. With regard to the damage, the Applicants reiterate their claim that they suffered real damage by DNA modification, excess morbidity in cancer and cardiovascular diseases, and therefore their autonomy was impaired. that in accordance with the ruling of other municipal applications 8037/06 Barzilai v. Prior (Hadas 1987) in  a tax  appeal (September 4, 2014), there is a factual presumption that a person whose autonomy has been violated feels feelings of anger, frustration and insult that establish a right to compensation, and the burden of contradicting the presumption rests on the shoulders of the wrongdoer.  According to the applicants, they were also anxious about the excess of cancer morbidity, fear of the disease and the need for tests.  Contrary to the respondents' claims, this is not future damage, but rather damage that has already occurred – both the physical damage caused by the change in DNA, and the violation of autonomy due to the feelings of anxiety.
76. If the applicants do not meet the burden of proving their claim, they wish to claim the damage caused to them due to the odors they experience almost daily.
77. The media publications were brought both to complete the picture of the studies that appear in those publications, and to present the information that is presented to the public frequently, in order to illustrate the sense of fear and anxiety in which the public lives.
78. With regard to the claim of limitation, the Applicants referred to Civil Appeal 2919/07 State of Israel - Atomic Energy Commission v. Guy-Liple (September 19, 2010), where it was held, inter alia, that in the case of latent diseases, the weight of the reasons underlying the statutes of limitations is reduced; that a scientific study that reveals a causal link between exposure to a certain substance and a particular disease will be considered both evidence and fact; that care must be taken not to impose an unreasonable burden on the injured party; and that the statute of limitations arrangements should be interpreted in a way of reduction.  In addition, other municipal applications 7707/01 Zoref v. Histadrut Health Fund (November 24, 2005), it was held that, among other considerations, in order to determine whether the plaintiff's lack of knowledge stemmed from reasons dependent on or not dependent on the plaintiff, the chances of success of a potential lawsuit must also be considered.  In our case, the dismissal of the claims in the Kishon case in the Supreme Court made it clear to the Applicants' counsel that the chances of success of their claim are zero.
79. With regard to the Respondents' claim for the protection of legality, according to which the Respondents acted in accordance with the terms of the licenses and the instructions of the Ministry of Environmental Protection, this does not exempt them from their general duty not to be negligent towards the residents of Haifa Bay, a duty that they violated.
80. With regard to the respondents' argument that the application for approval is not supported by sufficient affidavits of the applicants, the applicants replied that while the affidavits of most of the applicants are limited, because they deal only with the damage caused to them, to the amended application for approval was attached an additional affidavit Appendix 1D to the application for approval by applicant 4, Mr. Eliezer Brautman, who supports all the sections of the application.

Manner of Hearing of the Request for Approval

81. To the request for approval, 10 factories are responding . The alleged damage to the group amounts to approximately NIS 14  The case heard 20 evidentiary hearings [3 of them abroad].  10 hearings will be devoted to hearing witnesses and experts on behalf of the Applicants, and an additional 10 sessions will be devoted to hearing witnesses and experts on behalf of the Respondents.  The transcript of the recorded hearing is about 2,700 pages transcribed.
82. On behalf of the applicants, they themselves, Prof. Itamar Grotto, as well as the experts Dr. Zamir Shlita, Prof. Shai Lin, Prof. Molly Lahad and Mr. Dima Leikin, testified on behalf of the applicants.
83. Nir Kantor testified on behalf of the respondents, as well as the experts Dr. Kfir Yifrach, Dr. Sari Libiki, Dr. Julie Goodman, Prof. Gad Rennert and Prof. Eitan Friedman.
84. Note - The page numbers in the judgment are in accordance with their number in the minutes in the scanned file as they were embedded in the Net-Mishpat system.

Motion to certify a class action - on the burden of proof

85. The prerequisites for certifying a class action, which the court must examine at the stage of the motion for certification, are found in sections 3, 4 and 8 of the Law, and in order to pass the motion for certification, all of them must be indicated (see Civil Appeal 5378/11 Frank v. Allsale (published in Nevo, September 22, 2014); Civil Appeal Authority 4556/94 Tzetz v. Zilbershatz, IsrSC 49(5) 774, 720; Hagai Flint and Aviel WeinItsky Class Actions 110 (2017) (hereinafter: Flint & YinItsky)).
86. In Civil Appeal Authority 3397/23 Strauss Ice Cream in Tax Appeal v. Jubran (published in Nevo, November 3, 2024) (hereinafter: "the Strauss Case"), it was held, inter alia, that the requirements can be divided into two sets of conditions:

The first system, which is set forth in sections 3-4 of the Law, consists of prerequisites for filing a class action (hereinafter referred to as the threshold conditions).  These conditions include section 4(a), which refers to defining the identity of the representative applicant ("who may file a motion to certify a class action and on whose behalf"), and section 3(a), which is aimed at limiting the type of claim filed – "a claim in which a motion to certify a class action may be filed", as the title of the second addendum refers to, to which the section referres.