A is a producer of dangerous substances. After several years of site operation, neighbouring land has become contaminated. Being a neighbour of the site, B suffers a loss.

1. Is A liable to B? Is it of any importance that B owns the contaminated land?

2. Would it make any difference if B had suffered personal injury or property damage?

3. What would the extent of liability be if the pollutants cause minor health damage (e.g. chronic bronchitis) and/or property damage to the majority of people living in the community affected by the contamination?

Comparative remarks

Comparison

No European country, except for the Netherlands, provides for a specific liability regime with regard to dangerous substances. Operators of activities producing or dealing with dangerous substances, therefore, are subject to the liability regimes outlined in Case 1. In the Netherlands, Article 6:175 Burgerlijk Wetboek imposes a special strict liability regime on the use of dangerous substances. Liability is placed upon the operator of the activity, who can be held liable many years later, even after closure of the plant. With regard to waste diposal sites, Article 6:176(3) Burgerlijk Wetboek makes clear that, if a waste disposal site was transferred to another operator, the successor cannot be burdened with damages caused by his or her predecessor.

Most countries also ensure the clean-up of contaminated land pursuant to administrative law (Austria, Belgium, England, Finland, France, Germany, Italy, the Netherlands, Scotland, Spain and Sweden).

A is the keeper of a super-tanker. Due to a breakdown of instruments the tanker springs a leak and a huge amount of oil is spilled. A thick oil slick gets washed ashore, where it covers a popular beach area and lots of sea birds and some mammals.

1. Who is obliged to take clean-up measures? Are private organisations entitled to bring legal action and/or to undertake clean-up measures?

2. Is A liable for the costs of clean-up measures undertaken by public authorities and/or private organisations?

3. The local fishing industry and tourism facilities suffer severe loss of profits. Do they have a right to claim damages from A?

4. Large amounts of seawater are contaminated. Is A liable for this damage? Who has the right to claim this damage, and how is the damage evaluated?

Comparative remarks

Comparison

Clean-up costs (Cases 16, Question (a), and Case 17, Question (a))

In nearly all European countries, remediation costs for water pollution are covered by tort law. This includes fault-based liability and recovery according to the laws of the neighbourhood, or nuisance in the common law countries.

Most countries also provide for strict liability remedies. In Finland, strict liability for water contamination is governed by the Environmental Damages Act 1994. In Portugal, strict liability applies if the damage is caused by an objectively dangerous activity (Article 23 LAP). Compensation for significant ecological damage can be obtained both according to Article 23 LAP and according to the Base Law on the Environment (LBA).

Operator A is the operator of a site for the proper treatment of hazardous chemicals. After several years of site operation, chemical analysis show that the groundwater beneath the site is contaminated by certain chemicals known by medical science to cause leukaemia. The neighbours B and C can prove that their wells have been drawing from the contaminated water and that exposure to this contaminated water has caused them to suffer severe injuries. Neighbour B has already developed leukaemia. His wife C alleges that she suffers an increased risk of developing leukaemia in the future and that this fact is putting her in a state of constant fear and distress.

1. What kind of remedies do B and C have? Would it make any difference for the scope of damages if fault on behalf of A could be established? Does C have to show some actual physical damage as a prerequisite to sue? How severe must the harm be?

2. Plaintiff B has already died. Does C have a right to claim damages from A as a result of the death of a family member?

Comparative remarks

Comparison

Scope of damages

In all the countries analysed, recovery of personal injury is usually comprised of damages for actual and future loss of income, medical expenses and compensation for increased needs, such as the costs of personal assistance.

Scope of liable persons

Liability for polluting interference (Cases 1–10)

Fault liability

Liability for harm caused by polluting interference from neighbouring sites is rather incoherent among the European states. In all fifteen jurisdictions that were analysed, fault-based liability will apply generally. In some countries, however, there are special strict liability regimes for environmental damage that supersede traditional fault liability. This is especially the case in the Scandinavian countries (Finland, Sweden).

In countries where fault liability still plays an important role, several authors have pointed out that courts will use certain methods to tighten liability when it comes to harm caused by polluting interference from industrial facilities. These methods include heightening the level of care required from the defendant or shifting the burden of proof from the plaintiff to the defendant. This is the case in Spain, where scholars already speak of an ‘objectivisation’ of fault liability, which, in its practical application, comes close to strict liability. Such an aggravation of fault liability was also employed by the German BGH in the famous Kupolofen case by imposing the burden of proof on the operator of the industrial facility, and this example was duly followed by the Austrian OGH in the Sandstrahl decision. Both courts derive this interpretation from the laws of the neighbourhood under which the burden of proof traditionally lies with the defendant, and from the idea that, in such cases, the operator is in a better position to produce evidence than the victim.

A is the operator of a site for the permanent deposit of waste. Polluting effects therefrom cause damage to neighbour B. Fault cannot be established.

1. Is A liable to B? What kind of damage may B claim? Is it of any importance that B is the owner of the land affected by the negative effects?

2. What would the extent of liability be if the majority of people living in the community suffer minor property and/or health damage?

3. What is the extent of liability if A is the operator of an installation, or site, for the incineration, treatment, handling, or recycling of waste?

4. Would it make any difference if the operator of the waste disposal site was a private person, or a company, or if the dump-site was run by the state?

Comparative remarks

Comparison

The operation of waste disposal sites, as well as sites of incineration, treatment, handling or the recycling of waste, is covered by the liability regimes outlined under Case 1. In Finland, Germany, Greece and Sweden, such activities are also covered by their comprehensive environmental liability regimes. In Portugal, the application of strict liability according to Article 23 LAP, however, depends on whether the activity can be regarded as objectively dangerous. In Austria, strict liability according to §§ 163 et seq. MinroG plays an important role with regard to waste disposal sites situated in mines.

A is the operator of a site for the permanent deposit of waste. After more than 30 years of site operation, all the vegetables planted in the neighbouring area suddenly turn black. Chemical analyses show that the plants and the groundwater used for watering the plants are heavily contaminated by borax. Hydrological experts demonstrate that A's waste disposal site is the source of the contamination. According to A's records, borax had only been deposited on the site during the first 3 years of site operation. At that time, the site had been operated by company C, still currently an important borax producer, who had sold the site to A more than 30 years ago. Who is liable?

Comparative remarks

Comparison

Regulations on the statute of limitations vary considerably. In Austria, liability claims become statute-barred after three years from the point in time when the injured party learns of the existence of the damage and the identity of the liable person (§ 1489 ABGB). With regard to criminal offences punishable by more than one year of imprisonment, the statutory limitation period is thirty years from the date when the damage occurred. The same prescription period applies, in any event, even if the injured person did not know either of the damage or of the identity of the liable person. In Germany, the prescription period for property damage is ten years, or thirty years with respect to personal injury (§ 199(2) BGB).

A is the keeper of a vehicle for the transportation of dangerous chemicals. While passing through a nature reserve the vehicle starts skidding and the chemicals get spilled onto the ground and into the nearby river.

1. Does A have to pay for the clean-up costs?

2. The nature reserve contained some exceptional plants and wildlife. After the clean-up, the private association C starts a programme in order to restore the ecological balance of the impaired environment. Does C have a right to claim these costs from A and under what conditions?

3. The spill has contaminated the habitat of an extremely rare plant that is now extinct. Is A liable for this damage? Who has the right to claim the damage? Would it be of importance if A was at fault? How is this damage evaluated?

4. The nearby river, frequently used for white water canoeing and rafting, is contaminated and cannot be used for this purpose for the next three years. Plaintiff D, the owner of an outdoor entertainment business that has organised rafting and canoeing tours on the river for the last ten years, suffers a total loss of profits. Does D have the right to claim damages from A?

5. Would it make any difference if the nature reserve was state-owned?

Comparative remarks

Comparison

Cases 16 and 17 discuss the availability of tort law remedies for harm caused by water pollution.

In the river ‘Flumen’ that runs through an industrial area, a tremendous amount of fish are suddenly killed. Chemical analysis shows that the river contains high amounts of two chemical substances that have accumulated in the inner organs of the fish. One of the substances originates from plant A, the producer of household detergents, and the other one from plant B, the manufacturer of industrial solvents.

1. Who is liable if the fish kill was caused by both substances?

2. What is the extent of liability if it can only be shown that the fish kill was caused either by the industrial solvent or by the chemical used in the detergent production?

3. What is the extent of liability if it can be shown that the industrial solvent would have caused the death of the fish if the fish had not already been killed by the other chemical?

Comparative remarks

Comparison

The solution of concurrent causation is similar in all the European countries. This was explored by Case 14, which describes a fish kill. If two substances originating from different sources killed the fish, all jurisdictions provide for joint and several liability of the tortfeasors (cumulative causation). When one cause has taken effect before the other (intervening causation), nearly all reporters point out that only the person who caused the damage first is liable.

A engages in a polluting activity. B, who has been substantially exposed to its negative effects, develops cancer. B wants to sue A for damages.

1. Who bears the burden of proof on the issue of causation?

2. How certain must it be that A's activity caused B's illness so that B is entitled to damages? Which rules of evidence (preponderance rule, free evaluation of evidence) apply?

Comparative remarks

Comparison

Burden of proof

All the jurisdictions analysed have the general rule that the burden of proof on causation lies with the plaintiff. In some European countries, this is explicitly provided for by legal provisions, such as in Belgium (Article 1315 Burgerlijk Wetboek and Article 870 of the Code of Civil Procedure), Finland (§ 3 Environmental Damages Act 1994), France (Article 1315 Code Civil), Greece (Article 338 of the Code of Civil Procedure), Italy (Article 2697 Codice Civile), the Netherlands (Article 150 Wetboek van Burgerlijke Rechtsvordering), Portugal (Article 563 Código Civil), Spain (Article 217 Civil Procedure Act) and Sweden (Procedural Code, Chapter 35). In other countries this principle derives from case law (England, Ireland, Scotland), or judicial interpretation (Austria, Germany).

Level of certainty

Causation is established if the plaintiff can link the defendant to the harm to the satisfaction of the court. There are, however, considerable differences with regard to the level of probability that is necessary to establish causation. Austrian, German, Greek and Spanish law require a very high level of probability, close to certainty.

A, B and C are running three independent industrial sites. Pollutants emitted from these sites contaminate the air and cause damage to D's forest. Although the causal link between the pollutants and D's damage can be established, D is not able to apportion the damage among the defendants.

1. Is D entitled to claim full damages from A? Will A be entitled to sue B and/or C for contribution in paying damages if A has satisfied D's claim? What is the extent of their liability?

2. What is the extent of liability if it can be shown that each of the substances, in and of themselves, were not polluting, but that damage only occurred because of their interaction?

Comparative remarks

Comparison

Causation by multiple tortfeasors will subject them to joint and several liability, if the plaintiff can show the causal link between each activity and the damage, despite being unable to apportion the damage among the defendants. In all European countries, the plaintiff is, thus, entitled to claim full damages from any of the defendants. In Austria, this is generally provided by § 1302 ABGB. With regard to damage to forests and damage caused by licensed water installations, however, specific regulations provide for the apportionment of damages in equal parts (§ 53(2) ForstG, § 26(5) WRG). Nevertheless, before imposing joint and several liability or equally apportioning damages, the court is obliged to estimate each defendant's share.