Operator A runs an industrial plant that causes polluting effects (e.g. smoke, wastewater, noise) to the environment. Due to these effects, B suffers loss of, or damage to, property. Fault cannot be established.
Is A liable to B? Would there be any difference if B had suffered loss of life or personal injury?
What would liability be like if the pollutants cause minor health damage (e.g. chronic bronchitis) and/or property damage to the majority of the people living in the community affected by the pollutants?
The country reports show that liability for harm caused by polluting interference from neighbouring sites is rather incoherent among the European states. In all fourteen 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 speak of an ‘objectivisation’ of fault liability, which, in its practical application, comes close to strict liability.