Precisely, this does not mean that it is not possible to initiate a legal proceeding based on articles, but the litigant is expected to establish what is stated in the article as the proceeding progresses; otherwise, the articles themselves will not be sufficient to substantiate the claim and meet the required evidentiary burden. In this regard, see High Court of Justice 2148/94 Amnon Gelbert v. President of the Supreme Court and Chairman of the Commission of Inquiry to Investigate the Massacre in Hebron, paragraph 2 of the judgment of the Honorable Vice-President (as he was then called) Justice Barak (19 May 1994) (hereinafter: "the Gelbert case"):
"We should not reject 'out of hand' petitions based solely on journalistic articles. Of course, if at the end of the day – after granting the required extension (if it is necessary) and after exhausting all the means (which are not few) to reveal the truth – all that will be left to the petitioners is the dictation, [...] their petition may be rejected for the simple reason that they have not met the burden imposed on them to prove the very fact that they said the words
This is even more true in class actions, which seek to sue large sums of money on behalf of the general public, in a manner that is likely to significantly affect the proper operation of a corporation [see the Popik case above] [...] Therefore, articles from the newspaper are not, as a rule, evidence of weight sufficient to meet the burden of proof required in a legal proceeding (ibid., at length, paragraphs 152-156).
- Conclusion – Journalistic articles are not admissible as evidence of the veracity of their content and their evidentiary weight is low to zero, unless they are accompanied by an affidavit on behalf of the author of the article or are based on other admissible evidence. They may be submitted as evidence of their publication itself, but not as proof of the facts detailed therein (see also: Class Action (Tel Aviv) 26012-01-16 Eliyahu Cohen v. Rami Levy Hashikma Marketing (published in Nevo, June 9, 2021), para. 53; Civil Case (Hai District) 43573-05-16 GLOBALATTRACT HOLDING LIMITED - BVI REGSTERED COMPANY V. VIRTECH INFORMATION SYSTEMS AND INVESTMENTS IN TAX APPEAL (PUBLISHED IN NEVO, SEPTEMBER 29, 2020), SECTION 3).
- Given the aforesaid, the court did not attribute any evidentiary weight within the framework of this decision to journalistic articles, publications on the Internet, etc., which were attached by any of the parties to its various pleadings.
- Thus, for example , no evidentiary weight will be given to various articles that were attached to the list of appendices to the application for approval and appear in numbering (in the column on the right): 1, 14-19, and 26 ('articles') (see also Appendices 5, 6, 8-10, 15a-e, and 15k-21 of the application for approval), and similarly to Appendices 25 and 30-32 to Kantor's affidavit.
The parties' arguments
- At the basis of the application for approval, as detailed above, is the Applicants' claim that the residents of Haifa Bay have been exposed for many years to the pollution emitted by the Respondents' factories and as a result to excess morbidity.
- According to the Applicants, in their summary summaries, the doctrine of "recurring bias" should be applied in our case, which, according to them, is appropriate for situations of "vague causation" and "torts of mass exposure". According to the applicants, there is a significant excess of morbidity in the Haifa and the Gulf area for lung diseases, cancers and cardiovascular diseases.
- As to the causal connection, the Applicants argue briefly in their summaries, inter alia, that the causes of action here are different from the Kishon case and require proof of a causal connection in its broad sense, and that there is a "repeated bias" test that allows the court to rule on a causal connection at a rate of less than 51%. According to them, the burden of proof at the stage of approving the application is lighter and requires only prima facie evidence, that in tort claims for hazardous materials, the criteria for proving a factual causal connection should be more flexible than traditional tort law, and that the opinions of Prof. Shai Lin and Dr. Zamir Shlita established a definite causal connection between exposure to substances and cancer.
- In their summary, the respondents argued, in a nutshell, that the doctrine of "repeated bias" does not apply and is not suitable for application in the case at hand, that it was not properly established as a binding rule under Israeli law, and that it is intended to award compensation to injured persons who actually fell ill, and not to compensate for the risk of illness or infringement of autonomy. According to them, the applicants also did not meet any of the cumulative conditions required for the application of the doctrine.
- The Respondents also argued that the Applicants did not prove the existence of excess morbidity, and that proof of excess morbidity is a necessary prerequisite for the existence of a cause of action. According to them, based on the expert opinions on their behalf, the morbidity figures in the city of Haifa are not higher than in other cities. According to them, there is no proper study that proves a causal link between air pollution and excess morbidity in Haifa Bay, and they even refer to the conclusions of the Sadetzky Committee, which determined, inter alia, that no excess morbidity was observed in Haifa Bay compared to Tel Aviv and Hadera [see 46].
- As to the issue of causal connection , the respondents argued in summary that the applicants must prove a causal connection in a two-stage test: 1.Potential factual causal connection 2. A specific factual causal connection. According to them, the applicants did not prove excess morbidity in Haifa Bay, which is a prerequisite for proving a causal connection.
Overview
- The application for approval was filed in accordance with Item 6 of the Second Addendum, according to which a class action can be filed "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."
- Other Municipality Applications 4354/22 Tal v. Rotem Amfert Negev in a Tax Appeal (published in Nevo, October 12, 2023) It was held, inter alia, with regard to Item 6 of the Addendum that:
Taking into account the public objectives underlying it, the Class Actions Law serves as a proper and effective procedural platform for law enforcement in the field of the environment in particular. In this context, it should be noted that Item 6 of the Second Addendum to the Law – which lists the causes of action for which a class action may be conducted – was drafted in a rather expansive manner, so that it is possible to conduct a class action on any ground that concerns an "environmental hazard" against the "hazard party", as defined in the Prevention of Environmental Hazards Law (ibid., paragraph 29).
- In the Strauss case above, the court held, inter alia, that:
In order to meet the threshold conditions in section 3 of the Law, the petitioners claim the existence of Clause 6 of the Second Addendum to the Law, which allows the conduct of a class action on the grounds of "a claim in connection with an environmental hazard against the hazard party; For this purpose, 'hazard factor', 'environmental hazard' – as defined in the Prevention of Environmental Hazards Law." Against this background, there is no dispute that the granting of approval to conduct the class action in the circumstances of the present case depends on proof that the ammonia leak amounts to an "environmental hazard" under the provisions of the Prevention of Environmental Hazards Law. In addition, there is no dispute that to the extent that the leak does indeed amount to an "environmental hazard" as aforesaid, then Strauss constitutes a "hazardous factor" as required in Item 6 (see, in this regard, paragraph 37 of the approval decision). The issue that is the focus of our discussion is therefore the definition of an "environmental hazard" set forth in section 1 of the Prevention of Environmental Hazards Law , and the inclusion of the leakage event that is the subject of the case in this definition (ibid., paragraph 26).
- In the Golan case, it was held (by the Honorable President Y. Amit), inter alia, that:
However, it is necessary to remember that the Class Actions Law is based on grounds of substantive law that originate in other laws. Therefore, a prerequisite for approving a motion to conduct a class action is that the existence of a material cause, as it breathes life into the entire class proceeding, must be proven: