Forever Chemicals and Tort Law: Limitation

1 The facts

The cases were brought by surviving family members of Mr Moor and Mr Jann, respectively. Both men had died from asbestos-related mesothelioma. Mr Moor had been exposed to asbestos through his work until 1978, for a period of at least 13 years. He was diagnosed with malignant pleural mesothelioma in May 2004, from which he died in November 2005. Before his death, he initiated proceedings against his former employer, Alstom SA, for breach of contract. After his death, his two daughters continued proceedings against Alstom SA in their capacity as his heirs.^[12]

191Unlike Mr Moor, Mr Jann, a teacher, had not been exposed to asbestos through his work. Rather, the alleged exposure had taken place during his childhood. He had lived with his parents in a house rented from the Swiss company Eternit AG. The house was in the immediate vicinity of the factory grounds where asbestos was processed and where Mr Jann often played as a child. In 1972, at the age of 19, he moved away. 32 years later, in the autumn of 2004, he was diagnosed with malignant pleural mesothelioma. He died of the disease in October 2006, two years after diagnosis and shortly after having initiated criminal proceedings (which were later discontinued). In July 2009, Mr Jann’s widow and son brought an action in tort and contract against, inter alia, Eternit (Schweiz) AG as the alleged successor of the company which had operated the factory and owned the house in which Mr Jann had grown up.^[13]

In both Howald Moor and Jann-Zwicker, the Swiss cantonal courts as well as the Swiss Federal Court held that the applicable ‘absolute’ or ‘objective’ limitation period had expired and that accordingly, the claims were time-barred.^[14]

2 The Swiss law provisions on limitation

The Swiss Code of Obligations (CO)^[15] provides two different limitation periods for tort claims. They differ with respect to both their starting point and their length. The so-called ‘relative’ or ‘subjective’ limitation period expires after three years and starts with the injured party’s knowledge of the damage and the identity of the tortfeasor. In contrast, the ‘absolute’ or ‘objective’ period expires after ten or, in the case of personal injury, 20 years and starts on the date the duty was breached, even if the damage has not yet occurred.^[16]

It was the absolute limitation period which was at issue in Howald Moor and Jann-Zwicker. However, the longer absolute limitation period of 20 years in the case of personal injury only entered into force in January 2020, following a reform which 192aimed to strengthen the position of asbestos victims. At the time the two cases were decided by the Swiss courts, the absolute limitation period was still ten years. Accordingly, in the case of Howald Moor, the claims had become time-barred at the latest in 1988, 16 years before Mr Moor was diagnosed, and in the case of Jann-Zwicker, in 1982, 22 years before Mr Jann was diagnosed. However, the outcome would have been the same under the reformed law. The claims would also have been time-barred under a 20-year absolute period.

3 The ruling of the European Court of Human Rights

In both Howald Moor and in Jann-Zwicker, the European Court of Human Rights made it unequivocally clear that where it is scientifically proven that it is impossible for a person to know that they suffer from a certain illness, this must be taken into account for the purposes of limitation.^[17] Otherwise, given the long latency period between exposure and the onset of disease, any action for damages would be ‘doomed to failure from the start’, as it would become time-barred before it was objectively possible ‘for the victims of asbestos to have ... knowledge of their rights’^[18].

As explained by the European Court of Human Rights in Jann-Zwicker, the ‘taking into account’ required under art 6(1) ECHR can be achieved in different ways, eg by adapting the starting point (dies a quo) when the absolute limitation period starts to run, or by suspending the running of the limitation period.^[19] By failing to take ‘scientific impossibility’ into account, Switzerland was held to have violated the very essence of art 6(1) ECHR.^[20]

Following the decision in Howald Moor, there was some confusion as to what the ruling meant for absolute limitation periods in general. However, any residual uncertainty was removed in Jann-Zwicker. The European Court of Human Rights explained that what must be taken into account in the Member States is whether it is ‘scientifically proven that it is impossible for a person to know that he or she suffers from a certain illness.’^[21] In other words, the relevant question is not whether the injured person actually did know, but whether it was scientifically possible for them to know. The difference is subtle, but important. It may well be, for example, that a disease could be diagnosed on day X on the basis of advanced medical testing, 193but that the person in question does not suffer from any symptoms until much later, so that there is a time-lag between the earliest possible moment of diagnosis and the onset of symptoms. The first is an objective starting point, which has nothing to do with the injured party’s knowledge, and it is this objective starting point which, according to the European Court of Human Rights, must be taken into account.^[22] It follows – and this cannot be stressed enough – that the European Court of Human Rights has not abolished ‘absolute’ or ‘objective’ limitation periods.^[23] A different question is how to prove that an illness could have been diagnosed at an earlier stage than when symptoms arose. This is clearly of practical relevance, but it does not change the fact that absolute limitation periods are still allowed under the Convention.

1 Overview

There are several questions which the European Court of Human Rights was not called on to address in Howald Moor and Jann-Zwicker but which might become relevant in future cases concerning forever chemicals.

Firstly, the Court did not explain the notion of ‘illness’, knowledge of which must be ‘scientifically possible’. In the realm of asbestos claims, for example, would simple pleural plaques, which generally do not cause symptoms, but which signal the presence in the lungs and pleura of asbestos fibres which may independently cause fatal diseases,^[24] constitute the ‘illness’ which must be taken into account under the Convention? Or is the ‘illness’ referred to by the Court the specific illness which the injured party is seeking compensation for, ie (in the cases of Howald Moor and Jann-Zwicker) mesothelioma?^[25]

Secondly, the principles developed in Howald Moor and Jann-Zwicker were tailored to asbestos-related personal injury claims. In Jann-Zwicker, the Court stated that it was the ‘exceptional circumstances that pertain to victims of asbestos exposure’ which allowed it to conclude that the applicants’ right of access to a court had been restricted to the point that the very essence of the right had been impaired.^[26] 194The question arises as to which other categories of damage are comparably ‘exceptional’.^[27]

Thirdly, as the ‘scientific impossibility’ in both Howald Moor and Jann-Zwicker related to knowledge of the illness, it is unclear whether other facts which a person might not (objectively) be able to know of, such as the causal link between their illness and exposure to a toxic substance, must also be taken into account under the Convention.^[28]

Finally, neither Howald Moor nor Jann-Zwicker offers any guidelines regarding ‘subjective’ (or ‘relative’) limitation periods, as these were not at issue.^[29]

I will turn to these questions now.

2 The notion of ‘illness’ and the impact of increased risk

In Howald Moor and Jann-Zwicker, the European Court of Human Rights did not explain what it meant by the term ‘illness’, knowledge of which must be scientifically (ie objectively) possible. If, for example, Mr Jann had been diagnosed with pleural plaques before the absolute limitation period under Swiss law^[30] had expired, but his mesothelioma did not develop until afterwards, would a domestic court be in breach of the Convention if it allowed the claimant to seek compensation for the increased risk related to pleural plaques, but not for the actual mesothelioma?

Although increased-risk claims have not yet come before Swiss courts, some jurisdictions have shown a willingness to allow such novel causes of action in order to prevent a later claim for physical injury from becoming time-barred. A similar result is achieved in jurisdictions which allow claims for the anxiety suffered because of the increased risk of a disease.^[31]

195The link between increased-risk claims and limitation was highlighted in a decision of the Swedish Supreme Court of 5 December 2023.^[32] The case was concerned with the liability of a water company for the increased risk caused by drinking water contaminated by PFAS. In its decision, the Court noted that the case ‘raise[d] the question of whether it is possible ... to establish liability for the increased risk that such an impairment will occur in the future. ... An argument in favour of granting injured parties this right is that ... there is a risk that claims for damages will be statute-barred before the physical deterioration has occurred. ...’.^[33] The issue, therefore, was whether ‘increased risks in themselves should be regarded as personal injuries under current Swedish law’.^[34]

In its decision, the Swedish Supreme Court held that the bodily change in the claimants’ blood, which showed highly elevated levels of PFAS due to consumption of contaminated water, constituted bodily harm for the purpose of product liability, even though this change alone did not appear to cause any symptoms.^[35] The Court did, however, emphasise that ‘because of the high levels of PFAS in their blood, [the appellants] ran a higher risk of suffering negative health effects and diseases which are associated with PFAS exposure compared to someone not exposed to the same extent’.^[36] In other words, it was the combination of increased risk and physical change that led to the Court’s conclusion that the claimants had suffered physical injury. A different view was taken by the House of Lords in Johnston and NEI International Combustion Limited, which I will return to below.^[37]

In the past, the concern that a tort claim for physical injury might become time-barred also led several American courts to allow claims for increased risk.^[38] In those cases, the claimants had suffered some kind of physical impairment which, in itself, caused no symptoms, but which indicated that they had been exposed to toxic sub196stances which increased their statistical risk of becoming ill.^[39] By allowing such claims, the American courts were trying to work around the restrictions of the so-called single-action rule. Under this rule, a claimant must claim damages in the same action for all the damage which they have suffered, or will suffer, as a consequence of the breach of duty.^[40]

Neither the Swiss courts nor the European Court of Human Rights were concerned with increased-risk claims in Howald Moor and Jann-Zwicker. However, a statement made by the Court in Howald Moor suggests that the availability of an increased-risk claim before the absolute limitation period expires would not, by itself, be sufficient to satisfy the requirements of art 6(1) ECHR. In Howald Moor, the Swiss Federal Court had argued that there was no breach of art 6(1) ECHR as the applicants had received social security benefits because of Mr Moor’s death.^[41] The European Court of Human Rights responded that while it was aware that the applicants had received such benefits, it wondered ‘whether those benefits are such as to compensate in full for the damage suffered by the applicants as a result of the ... limitation of their rights.’^[42] In my opinion, it follows from this reference to full compensation that the ‘illness’ which must be taken into account for the purposes of limitation must be more than a mere physical change (such as in the case of pleural plaques) combined with an increased risk, as such claims would likely result in the claimant being undercompensated.^[43] Rather, it will, as a rule, be the diagnosed disease for which compensation is being sought, ie, in the case of Howald Moor and Jann-Zwicker, the mesothelioma.

3 Applying Howald Moor and Jann-Zwicker beyond asbestos claims

As mentioned above,^[44] in Jann-Zwicker, the European Court of Human Rights emphasised the ‘exceptional circumstances that pertain to victims of asbestos exposure’. Although the Court did not specify in what way it considered the circumstances of such persons to be ‘exceptional’, its reference to the decision of SAS 197IVECO FRANCE^[45] which, in turn, refers to Howald Moor,^[46] suggests that it was not the problem of proof of injury as such, but rather the length of the latency period between the exposure to asbestos and the onset of disease. The case concerned damages claims brought by employees against SAS IVECO FRANCE for anxiety suffered because their risk of disease had increased through work-related exposure to asbestos.^[47] In its decision, the European Court of Human Rights noted that ‘diseases linked to exposure to asbestos are characterised by a particularly long latency period (Howald Moor ... at [74]). The Court has held that from the perspective of the right of access to a court, this specific feature must be taken into account for the purposes of limitation (ibidem at [74–79])’^[48].

It follows that the ruling in Howald Moor and Jann-Zwicker must apply equally to diseases linked to toxic substances other than asbestos, insofar as these diseases are characterised by a ‘particularly long latency period’. This leads us to the question as to the cases’ impact where an injured person’s access to a court is thwarted not because the latency period is particularly long, but because of evidentiary difficulties relating to causation. I will turn to this question now.

4 Which facts must be ‘scientifically knowable’ under Howald Moor and Jann-Zwicker?

By way of illustration, let us assume that unlike in Howald Moor and Jann-Zwicker, a person who was exposed to forever chemicals became ill before the limitation period expired. However, because of the limits of science at that time, it was objectively impossible for them to prove a causal link between the exposure and their disease. Now let us assume that in the meantime, science has progressed, and it has become possible for the injured person to prove causation. This scientific breakthrough, however, did not take place until after the limitation period had expired. If a court, in proceedings initiated by such a person, were to hold that their claim was time-barred, would this constitute a breach of art 6(1) ECHR under Howald Moor and Jann-Zwicker?

198The answer depends on where one places the emphasis in Howald Moor and Jann-Zwicker. As pointed out above,^[49] the cases suggest that it was the long latency period which was central to the Court’s reasoning. Accordingly, one could argue that where a disease does not have a characteristically long latency period, Howald Moor and Jann-Zwicker do not apply. In both of these cases, the evidentiary difficulties encountered by the injured parties (ie the impossibility of knowing that they were ill) were linked to the length of the latency period between the exposure to asbestos and the onset of the disease. In other words, the difficulty was time-related. In contrast, the evidentiary difficulties in cases involving forever chemicals relate to causal uncertainties which are independent of the length of the (currently unknown) latency period. The problem of proof remains the same whether the latency period be long or short. It could be said that therein lies the central difference between asbestos-related mesothelioma claims and (future) PFAS claims.

On the other hand, both mesothelioma claims and potential PFAS claims have in common that the evidentiary difficulties which they raise are rooted in the current limits of human science. In the case of mesothelioma, it is not (yet) possible to predict whether a particular individual who was exposed to asbestos will go on to develop the disease. In the case of forever chemicals, it is currently impossible to establish whether a particular individual’s disease was (or will be) caused by exposure to such substances. In both constellations, until there are significant scientific breakthroughs, applying absolute limitation periods will prevent injured persons from seeking damages before it is objectively possible for them to have knowledge of their rights.^[50] If this is considered to be the cardinal point, then the question of the latency period loses importance. PFAS claims would be allowed to proceed regardless of absolute limitation periods, as soon as scientific proof of causation became possible.

Trying to establish whether a decision of the European Court of Human Rights is a precedent for other cases is an exercise to which a common law lawyer is better suited than one with a civil law background. Nonetheless, in my opinion, the Court’s emphasis on the length of the latency period^[51] makes the second interpretation harder to sustain. However, from an injured party’s perspective, it makes little difference whether they are unable to claim damages because of the impossibility of proving harm before the limitation period has expired or because of the impossibility of proving causation before the limitation period has expired. These could be 199said to be two aspects of the same thing, namely the impossibility of bringing and proving a claim within the objective time limit.

A different approach would be to focus on the scientific ‘knowability’ of the constituent elements of a claim, rather than on the length of the latency period in which they might materialise. This is the approach taken by the (English) Limitation Act 1980 for actions in respect of personal injuries, albeit with respect to ‘subjective’ limitation periods, triggered by a person’s knowledge (rather than by objective ‘knowability’). Under section 11(4) of the Act, in the case of personal injury, the applicable limitation period is, in general, ‘three years from (a) the date on which the cause of action accrued; or (b) the date of knowledge (if later) of the person injured’. According to section 14, a person has ‘knowledge’ within the meaning of (inter alia) section 11(4)(a) on the date on which they have knowledge of the following facts: ‘(a) that the injury in question was significant; and (b) that the injury was attributable in whole or in part to the [allegedly negligent] act or omission ...; and (c) the identity of the defendant; and (d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant; and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence ....’

It is not possible to predict whether the European Court of Justice will one day adopt a comparable view with regard to absolute limitation periods and shift its focus to the elements of the claim under art 6(1) ECHR. The consequences of such a shift would be far-reaching, as it would effectively remove any reliable time limitation as long as science progresses. However, at least outside of strict liability regimes, tort liability would still require wrongfulness, ie that the defendant breached a duty toward the injured person. Such a duty could not be created retroactively, based on future standards and future knowledge.

5 Questions relating to ‘subjective’ (or ‘relative’) limitation periods

As already pointed out,^[52] ‘subjective’ limitation periods, ie periods which are triggered by the injured party’s knowledge, were not at issue in Howald Moor or Jann-Zwicker. However, they also give rise to questions which could become relevant in future tort claims relating to forever chemicals.

One such question is whether subjective limitation periods are triggered by knowledge of the injury (or damage) or rather by knowledge of the financial loss resulting from that injury.

200If knowledge of the injury is decisive, then the distinction between mere physical ‘changes’ and actual physical ‘injury’ will be the central important factor not only for determining whether a claimant even has a claim, but also for deciding whether such a claim has become time-barred. This distinction was at issue in the aforementioned decision in which the Swedish Supreme Court held that physical changes in combination with the increased risk of disease constituted physical injury under Swedish law.^[53]

Conversely, in the English case of Johnston and NEI International Combustion Limited,^[54] the House of Lords unanimously held that symptomless plaques, together with the increased risk of future injury, did not constitute physical injury. The appellants had been exposed to asbestos through the negligence of their employers and had developed pleural plaques as a result, ie a fibrous thickening of pleural membrane surrounding the lungs. As already mentioned,^[55] such plaques do not, as a rule, cause any symptoms, nor do they cause other asbestos-related diseases such as asbestosis or mesothelioma.^[56] However, the statistical risk of developing such diseases is significantly higher in persons with plaques than in those who have been exposed to asbestos but have not developed plaques.^[57] The question was raised whether, ‘[i]f the pleural plaques are not in themselves damage, do they become damage when aggregated with the risk which they evidence or the anxiety which that risk causes? In principle, neither the risk of future injury nor anxiety at the prospect of future injury is actionable.’^[58] The appellants had argued that they had a cause of action on the basis of the single-action rule.^[59] However, in the opinion of the House of Lords, there was ‘nothing to suggest that a claimant can rely upon the single action rule to sue in circumstances in which he does not have a cause of action in the first place.’^[60]

In legal systems where knowledge of the injury (rather than of the financial loss flowing from the injury^[61]) is decisive for the purpose of subjective limitation periods, it is important to keep in mind that allowing increased-risk claims might ad201versely impact those persons who choose not to bring a claim until the onset of disease. If, for example, elevated levels of PFAS in a person’s blood become physical injury when aggregated with the increased risk of disease, the argument could be made that the subjective limitation period begins to run when that person knew of the elevated levels of PFAS in their blood and the related risk, as from that moment onwards, they could have claimed compensation. This might potentially bar those persons who go on to develop the actual disease after the limitation period has expired from claiming damages for the disease itself. Whether such a time bar would be compatible with art 6(1) ECHR was not at issue in Howald Moor or Jann-Zwicker. However, given the Court’s emphasis on full compensation,^[62] the compatibility of such an approach with the Convention seems doubtful. For if a person develops a disease because of their exposure to forever chemicals, the compensation which they received previously for their increased risk of developing a disease will not be sufficient to compensate them in full for the disease itself.

The problem is less acute in legal systems such as Switzerland, where knowledge not of the injury, but of the financial loss is decisive. Under art 60(1) of the Swiss CO,^[63] ‘[t]he right to claim damages ... prescribes three years from the date on which the person suffering damage became aware of the loss and of the identity of the person liable for it ...’^[64]. Here, the pertinent question will be the moment when the ‘loss’ can be said to have occurred. The answer to this question can differ between legal systems. In Switzerland, according to established case law, loss is only deemed to have ‘occurred’ for the purposes of art 60(1) CO when it has fully materialised.^[65] In other words, where loss results from a situation which continues to develop and evolve, such as a physical injury which has not yet reached its final shape or form, the limitation period cannot begin to run before the development has come to an end.^[66] Accordingly, the various heads of loss resulting from the same unlawful act do not constitute separate losses, but rather elements of a single loss, incurred when the last loss, in chronological order, has occurred.^[67] In my opinion, it follows that, if increased-risk claims were introduced into Swiss law, the knowledge that such a claim is available in a particular case would not trigger the subjective limitation period with respect to future claims for loss suffered if and when the actual disease breaks out.