The Perils of PFAS: Navigating Civil Liability Claims

About this series

Welcome to the second article in our regular series, The Perils of PFAS. This series is designed to help you navigate the issues surrounding PFAS, a contaminant which is garnering greater scrutiny as the knowledge about its impacts continues to evolve.

This article is particularly relevant to potential plaintiffs and defendants of civil liability claims relating to PFAS contamination.

Recent developments

As you may know, several class actions have been brought in relation to the use of a PFAS containing product, known as aqueous film forming foam (AFFF), on sites throughout Australia. AFFF is a fire suppressant that is used in fire-fighting and fire-fighting training activities.

These class actions have been brought by occupiers and owners of land surrounding sites on which AFFF has been used. The plaintiffs allege that the use of AFFF has caused PFAS to migrate into the surrounding environment, contaminating soil, groundwater and surface water. The basis of their claims include causes of action in negligence and nuisance.

In light of the above, this article explores the nature of civil liability claims relating to PFAS contamination and provides practical tips for potential plaintiffs and defendants.

What makes PFAS so contentious?

PFAS contamination has been the subject of several lawsuits in Australia and around the world. The key factors which make PFAS contamination so contentious and prone to litigation include:

1. PFAS are highly mobile and persistent – PFAS are water soluble and may spread far from the source of original pollution. Once they have spread, PFAS persist in the environment as they are resistant to degradation. As such, there is a large pool of potential litigants who may be affected by a PFAS plume.
2. Lack of a clear solution – As remediation methodologies for PFAS contamination are still evolving, there are limited options for remediating affected sites and remediation costs may be significant. Due to the difficulties associated with treating waste containing PFAS, there are limited facilities licensed to accept this waste. As a result, it is often difficult to find a practical and cost effective solution.
3. Uncertain future health impacts result in losses today – There is uncertainty about the human health impacts of PFAS contamination, and the safe levels of exposure for humans and the environment are unknown. This uncertainty leads to public concern about the potential for future health problems and impacts on peoples’ decision making today. For example, there have been reports of a diminution in the land value of properties surrounding sites on which PFAS have been used.¹  Similarly, concern about future health problems may have current mental health impacts.

Who might be responsible for PFAS contamination?

The most high profile cases in Australia relate to sites where AFFF has been used, including where firefighting training exercises have been undertaken, or where there has been a fire. However PFAS products have also been used in a range of industries and activities, including aluminium production, power generation, coal mining, petroleum exploration, chrome and metal plating, and in the manufacturing of electricity and communications equipment, fertilisers, healthcare technologies, textiles, building products, and paper and food packaging.²

Key sources of civil liability

The key sources of civil liability for persons who have carried out activities involving PFAS are the torts of nuisance and negligence.

Nuisance

A “nuisance” is an interference with the rights of a person or a class of persons to the enjoyment of life or property. There are two types of nuisance: private nuisance and public nuisance. A private nuisance is an interference with private property rights, whereas a public nuisance is an interference with the public rights of a class of persons. Most commonly, claims relating to PFAS contamination are brought under private nuisance.

The elements of a claim in private nuisance are:

• the plaintiff has a right to own or occupy land;
• by an act or omission, the defendant has caused an interference with the plaintiff’s rights to use or enjoy that land; and
• that interference was substantial and unreasonable.

For example, PFAS contamination may cause a private nuisance if it can be demonstrated that, as a result of the contamination, landowners have been unable to use bore water on their land, which they are legally entitled to use.

Negligence

The tort of private nuisance can only apply where there has been an interference with a private property right. The tort of “negligence”, on the other hand, is of broader scope. For example, a claim in negligence may offer a remedy where the damage suffered is a personal injury or business interruption, as well as property damage.

The elements of a claim in negligence are:

• the defendant owed the plaintiff a duty of care;
• by an act or omission, the defendant failed to exercise a reasonable standard of care;
• the plaintiff suffered loss or damage as a result of that act or omission; and
• the loss or damage suffered was reasonably foreseeable.

For example, PFAS contamination may be the subject of a successful claim in negligence if it can be demonstrated that, as a result of the contamination, a landowner suffered loss from the diminution in the value of their property, and the polluter failed to take reasonable steps to prevent that loss.

Underscoring a claim in both nuisance and negligence is that the defendant must have had actual or constructive knowledge of the risk of loss or harm.

Practical tips for potential plaintiffs and defendants

Although several claims have been made, in Australia we are yet to receive a Court judgment clarifying:

• when persons who carried out activities involving PFAS containing products should have known of the potential risks of harm to human health and the environment;
• what reasonable steps those persons should have taken to mitigate those risks; or
• the types of losses that can be said to have been caused by PFAS contamination.

Nevertheless, what is clear is that the absence of certainty on these matters should not result in a “do nothing” approach.

In light of this, the following tips for potential plaintiffs and defendants may be useful:

1. For potential defendants – Develop a strategy to assist you to demonstrate that you have taken reasonable steps to prevent any foreseeable harm to persons or properties arising from PFAS contamination. Your strategy should be flexible enough to accommodate any developments in science and policy.
2. For potential plaintiffs – Ensure that you keep records demonstrating any losses you have incurred and take steps to mitigate these losses, so as to avoid claims that you contributed to, or failed to mitigate, your loss. Advice should be obtained regarding the operation of limitation periods, which may prevent you from bringing claims after a certain date.
3. For both – obtain legal advice to assist you to establish and maintain legal professional privilege, which can, in certain circumstances, enable you to claim that certain documents are confidential and to avoid having to produce these documents in court.

To read the first article in this series, PFAS and major projects: Mitigating the risks for construction contracts, please click here.