Volume 16, Issue 2 - Special Issue: Forever Chemicals and Tort Law

99Abstract The present paper provides a comparative law analysis of liability for per- and polyfluoroalkyl substances (PFAS) pollution with a special focus on grounds for liability. The paper explores liability based on public and private law to reflect on the role of environmental litigation, its potential and its limitations. Further, with this scope and aim, the paper shall demonstrate the necessity of taking intra-, inter- and transdisciplinary approaches to tackle chemical environmental pollution. While the present paper focusses on forever chemicals, it furthermore emphasises the necessity to better understand the impacts of anthropogenic chemicals on the environment and human health.

121Abstract This paper examines the complex issue of persistent substances through the lens of tort liability, with a particular focus on the notion of damage. These substances are ubiquitous in the environment, and their complete elimination is virtually unattainable due to their exceptional chemical stability under natural conditions. The harms associated with their presence are varied and far-reaching, encompassing personal injury, property damage, and environmental harm. The study provides an overview of the different types of tort claims brought in response to such damage, as well as the challenges and limitations encountered in establishing liability from a comparative legal perspective.

165Abstract The ubiquity of the thousands of artificial substances known generically as PFAS is increasingly apparent. Their presence in human blood, drinking water, commercial fisheries, soil, and consumer products, alongside their association with a range of health and environmental impacts, is stimulating tort claims globally. These claims are likely to raise recurring causal challenges for claimants and courts. This contribution will explore some of those challenges, focusing on English law, and on core issues around, first, scientific uncertainty about the effects of these chemicals, and secondly, the existence of multiple possible causal factors in many cases. Establishing causation for disease (rather than contamination) is likely to be extremely difficult. As in other areas of complex causation, maintaining strict causal requirements might reasonably be understood either as protecting or as undermining the fundamental values of tort: even if this dilemma cannot be resolved, it is worth raising.

187In its decisions on asbestos-related mesothelioma claims, the European Court of Human Rights (ECtHR) has held 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. This contribution explores from a comparative perspective which conclusions can (or cannot) be drawn from these decisions for future tort claims relating to forever chemicals. In particular, it discusses the notion of ‘illness’, knowledge of which must be possible under the ECtHR’s case law; whether the current difficulties of establishing causation between exposure to forever chemicals and an illness might one day have the same impact on limitation as the impossibility of knowing that one is ill before the limitation period has expired; and the potential impact of increased-risk claims on limitation. While the focus lies on personal injury claims, property claims are also addressed.