1.

Overview of the Case
 
On June 4, 2016, while loading hydrogen fluoride at Company A’s plant, approximately 2,370 kg of hydrofluoric acid was leaked within loading and unloading areas, with an additional 444.6 to 871.3 kg leaking outside. The leaked hydrofluoric acid subsequently evaporated, resulting in the diffusion of approximately 33.04 kg of hydrogen fluoride in a gaseous state. Thereafter, residents in neighboring areas filed a claim for damages against Company A, pursuant to the Environmental Damage and Relief Act.
 

2.

Relevant Statutes and Provisions

The Environmental Damage and Relief Act was enacted on December 31, 2014 with the aim to (i) alleviate the burden of proof for victims by incorporating the legal principles of no-fault liability and presumption of causation, thereby promoting the implementation of the Polluter Pays Principle, (ii) mandate facilities that pose a high risk of environmental pollution to subscribe to environmental liability insurance and secure sufficient financial resources to compensate for potential damages, and (iii) establish an effective relief system that addresses the needs of victims affected by environmental damages, including the elimination of gaps in the provision of relief.

In particular, Article 9 (1) of the Environmental Damage and Relief Act presumes the establishment of causation where it is “highly probable” to believe that a relevant facility has caused the environmental damage. Further, Article 9 (2) outlines specific criteria based on which the existence of sufficient probability can be determined. Moreover, business owners may challenge or rebut the presumption by disputing the indirect facts under Article 9 (2) or proving facts under Article 9 (3).

3.

Decision of the Supreme Court

Given the legislative purpose, the Supreme Court stated that, if a plaintiff proves, via various indirect facts set forth in Article 9 (2) of the Environmental Damage and Relief Act, that it is highly probable that the pollutants discharged in connection with the installation and operation of a facility caused damages to another person’s life, body, or property, a causal relationship between the facility and the damages shall be presumed. The Supreme Court further stated that it is not necessary to directly prove that the pollutants discharged from the facility reached the plaintiff or his/her objects and caused the damages.

Fully taking into account the following four factors to determine “considerable probability” as set forth in Article 9 (2) of the Environmental Damage and Relief Act, the Supreme Court concluded that it was highly probable that the hydrogen fluoride leaked from Company A’s facilities dispersed into the air in a gaseous form, and later descended to the ground, ultimately causing harm to the plaintiffs. Consequently, the Supreme Court upheld the lower court’s ruling to award KRW 7 million to each of the 19 plaintiffs, amounting to a total compensation of KRW 133 million.
 

In this case, there were circumstances where hydrofluoric acid was not detected in the defendants’ urine. However, the Supreme Court reasoned that it would be inappropriate to dismiss any causal relationship between the accident and the plaintiffs’ collective symptoms solely based on such circumstances, because most of the hydrogen fluoride absorbed into the body is released through urine within a 24-hour period. Moreover, despite the findings of the investigation report from the National Institute of Chemical Safety on the cause of the chemical leakage accident, which concluded that the diffused hydrogen fluoride could have an impact range of 102 to 149 m, the Supreme Court emphasized that this range may vary considerably due to various factors such as geographical characteristics and climatic conditions.
 

4.

Implications

In a previous ruling, the Supreme Court outlined the burden of proof borne by plaintiffs, stating that they must demonstrate: (i) the emission of hazardous substances, (ii) the inflow of such emissions, and (iii) the occurrence of damages. If the plaintiffs successfully prove these elements, the causality would be presumed. However, defendants may rebut the presumption by showing, for example, that (a) the substance at issue does not exist or is within the safe concentration range, or (b) there is another sole cause attributable to the accident.

However, per this Supreme Court decision, proving a direct causation between the discharge of pollutants from the facility and the resulting damages on plaintiffs is no longer necessary. Instead, if a plaintiff can establish, in his/her favor, the indirect facts as outlined in Article 9 (2) of the Environmental Damage and Relief Act, a causal relationship between the facility and the damage can be presumed. This legal principle would significantly ease plaintiffs’ burden of proof on the causation previously imposed by precedents.

Based on the implications of this Supreme Court decision, it is anticipated that future victims of environmental damages would actively pursue environmental litigation to seek compensation. Therefore, it is advisable for business owners to establish a robust compliance system and fully meet their obligations related to potential causes of environmental damages, by complying with all laws and regulations governing the environment and safety, meeting all terms and conditions of licenses and permits related to potential causes of environmental damages, and proactively implementing measures to prevent environmental accidents. In the event that environmental damages occur, it is essential to meticulously prepare effective countermeasures and strategies. This entails the preparation of compelling evidence based on a comprehensive review of indirect facts specified in Article 9 (2) of the Environmental Damage and Relief Act, or sufficient proof that the environmental damage was caused by other factors.