Case 14 - Fish kill

Summary

In the river ‘Flumen’ that runs through an industrial area, a tremendous amount of fish are suddenly killed. Chemical analysis shows that the river contains high amounts of two chemical substances that have accumulated in the inner organs of the fish. One of the substances originates from plant A, the producer of household detergents, and the other one from plant B, the manufacturer of industrial solvents.

1. Who is liable if the fish kill was caused by both substances?

2. What is the extent of liability if it can only be shown that the fish kill was caused either by the industrial solvent or by the chemical used in the detergent production?

3. What is the extent of liability if it can be shown that the industrial solvent would have caused the death of the fish if the fish had not already been killed by the other chemical?

Comparative remarks

Comparison

The solution of concurrent causation is similar in all the European countries. This was explored by Case 14, which describes a fish kill. If two substances originating from different sources killed the fish, all jurisdictions provide for joint and several liability of the tortfeasors (cumulative causation). When one cause has taken effect before the other (intervening causation), nearly all reporters point out that only the person who caused the damage first is liable.