Case 13 - The dying forest

Summary

A, B and C are running three independent industrial sites. Pollutants emitted from these sites contaminate the air and cause damage to D's forest. Although the causal link between the pollutants and D's damage can be established, D is not able to apportion the damage among the defendants.

1. Is D entitled to claim full damages from A? Will A be entitled to sue B and/or C for contribution in paying damages if A has satisfied D's claim? What is the extent of their liability?

2. What is the extent of liability if it can be shown that each of the substances, in and of themselves, were not polluting, but that damage only occurred because of their interaction?

Comparative remarks

Comparison

Causation by multiple tortfeasors will subject them to joint and several liability, if the plaintiff can show the causal link between each activity and the damage, despite being unable to apportion the damage among the defendants. In all European countries, the plaintiff is, thus, entitled to claim full damages from any of the defendants. In Austria, this is generally provided by § 1302 ABGB. With regard to damage to forests and damage caused by licensed water installations, however, specific regulations provide for the apportionment of damages in equal parts (§ 53(2) ForstG, § 26(5) WRG). Nevertheless, before imposing joint and several liability or equally apportioning damages, the court is obliged to estimate each defendant's share.