A's industrial plant releases a chemical substance into the environment that is generally considered to be harmless to human health. Recent medical studies, however, show that this substance can cause a very specific form of asthma. B, who suffers from this asthma, wants to sue A for damages. A objects that he did not know, and could not have known, that the emissions of his plant can cause this disease. Is A liable?
The capability to foresee the risk of an activity is an essential prerequisite for a fault-based liability. Thus, in most European countries, fault cannot be established, if the operator of a plant did not and, due to the lack of empirical and scientific knowledge, could not have known that emissions from its plant were capable of causing damage. Only the Portuguese reporter stated that such circumstances do not exclude fault liability according to Article 22 LAP.
Under theories of strict liability, most jurisdictions do not allow the defendant to escape liability by showing that he did not and could not have known the risk. Product liability, however, poses an exception to this rule, as Article 7(e) of the EC Products Liability Directive provides that the producer of a defective product shall not be liable if he proves ‘that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered’.