Matilda Hellström May 28 2018 Liability for damages due to export of toxic waste: revisited Advokatfirman Lindahl | Environment & Climate Change - Sweden Matilda Hellström Environment & Climate Change DecisionCommentOn March 8 2018 a Swedish district court ruled on a matter where approximately 800 Chileans had sued a Swedish mining company for damages, based on the grounds that the mining company had exported toxic waste which subsequently caused damage to the plaintiffs' health (for further details please see "Liability for damages due to export of toxic waste").DecisionThe court held that the Swedish mining company was not liable for damages. Thus, the plaintiffs lost and were obliged to pay the mining company's full litigation costs (more than SKr35 million).The court concluded that Chilean law was the correct law in this case, because the law of the injured party's country should have applied (lex loci damni). The claim was therefore not barred by the statute of limitations, since Chilean law has a more generous limitation period than Swedish law.The plaintiffs pointed out that serious diseases are common among the inhabitants of Arica, Chile. However, the court did not have to decide whether the toxic waste caused disease among the individuals, but rather that the damage for which the plaintiffs were claiming compensation was a result of the level of arsenic present in urine samples taken from the individuals. The plaintiffs argued that the presence of arsenic in urine above a certain level would lead to serious health effects and concerns. The court applied Chilean law and found that arsenic in a urine sample could be regarded as damage, but it considered that the level of arsenic must be significantly higher than in the plaintiffs' claims. Therefore, only a small number of individuals may be considered to have suffered damage and most of the plaintiffs' claims for damages were denied.The plaintiffs claimed that the mining company was negligent in various ways. The court found that the mining company had followed the provisions regarding exportation that were in force in the mid-1980s. However, it found the mining company to be negligent in one respect. During visits to the Chilean company, in connection with the transport of the waste, the mining company took no action as a result of the Chilean company storing the toxic waste without it being covered.The plaintiffs failed to prove that the waste had contributed to the arsenic content in the urine samples and no connection was made between the waste and the alleged damage. However, for certain private individuals, such a causal link existed. The court considered that it was impossible for the mining company to predict this, as the areas where the affected individuals lived were deserted and not built up at the time of exportation.The court ruled against the plaintiffs, whose action not sustained. The plaintiffs have since appealed and the Court of Appeal has yet to determine whether permission to appeal will be granted.CommentThe ruling highlights how choice-of-law rules may have a direct impact on the adjudication of tort cases regarding environmental damages. It also indicates the legal difficulty of evidencing damage and proximate cause in regular tort cases concerning old actions where ordinary rules of burden of proof apply (the burden of proof rests with the plaintiffs). Domestic Swedish law (which was inapplicable in this case) may provide other, sharper instruments in terms of burden of proof (a 'strict' liability could apply for operators) for plaintiffs who claim to have suffered damage from activities carried out from a Swedish site if proximate cause can be established.It remains to be seen whether this case will be tried by the Appeal Court for Environmental Matters.For further information on this topic please contact Matilda Hellström at Advokatfirman Lindahl KB by telephone (+46 40 664 66 50) or email ([email protected]). The Advokatfirman Lindahl KB website can be accessed at www.lindahl.se.