Supreme Court Eases Plaintiff’s Burden to Prove Causation for Environmental Damage

On December 28, 2023, the Supreme Court established a new legal principle regarding the burden of proof for environmental damages under the Act on Liability for Environmental Damage and Relief (the “Environmental Damage and Relief Act”). The Supreme Court held that “where it can be proven that there is a high probability that pollutants discharged in relation to the installation and operation of a facility caused damages to another person’s life, body or property, a causal relationship between such facility and the damages shall be presumed” (Supreme Court Decision 2019Da300866, December 28, 2023).

On June 4, 2016, while loading hydrogen fluoride at Company A’s plant, approximately 2,370 kg of hydrofluoric acid leaked in the loading and unloading areas and around 444.6 to 871.3 kg leaked outside. The leaked hydrofluoric acid subsequently evaporated, resulting in the diffusion of approximately 33.04 kg of hydrogen fluoride. Residents in neighboring areas filed a claim for damages against Company A, pursuant to the Environmental Damage and Relief Act.

Relevant Statutes and Provisions

The Environmental Damage and Relief Act was enacted on December 31, 2014 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.

Article 9 (1) of the Environmental Damage and Relief Act presumes causation where it is “highly probable” to believe that a facility has caused the environmental damage. Article 9 (2) outlines the 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).

Article 9 (Presumption of Causal Relationship)

(i)	Where it is highly probable to believe that a facility has caused environmental damage, such environmental damage is presumed to have occurred as a result of the facility.
(ii)	Whether the “sufficient probability” referred to in paragraph (1) exists shall be determined in consideration of the operation process of a facility, equipment in use, types and concentration of input or discharged materials, weather conditions, when and where damage has occurred, status of damage, circumstances affecting the occurrence of damage, etc.
(iii)	Where a business owner proves that environmental damage has occurred due to other reasons, or that he/she has (i) fulfilled the responsibilities under Article 4 (3), including observing all provisions of acts and subordinate statutes governing environment and safety, and all terms and conditions of authorization and permission related to the cause of the occurrence of the environmental damage prescribed by Presidential Decree, and (ii) endeavored to prevent environmental damage, he/she shall be exempt from presumption under paragraph (i).

Supreme Court Decision

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 property and caused the damages.

Considering the following four factors to determine “sufficient probability” as set forth in Article 9 (2) of the Environmental Damage and Relief Act, the Supreme Court held that it was highly probable that the hydrogen fluoride that 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 amount of KRW 133 million.

(1)	Operation of the facility: As the business owner in this case (i.e., the defendant) is a person who engages in the business of handling hazardous chemicals under Article 27 of the Chemicals Control Act, and the facility at issue falls under the definition of “handling facility” under Article 2, Subparagraph 11 of the same act, the business owner is legally obliged to compensate for environmental damages arising from the installation and operation of the facility.
(2)	Type of discharged materials: Hydrogen fluoride, which when released in a gaseous state, quickly disperses into the atmosphere and reacts with water vapor, resulting in the formation of white fumes. Most of these fumes then descend to the ground as hydrofluoric acid. In case of small-scale hydrogen fluoride leaks, an evacuation radius of 0.2 km is advised during the day, extending to 0.5 km at night.
(3)	Weather conditions: The majority of the affected individuals resided approximately 300 to 500 m south of the accident site. During the time of the incident, as night was approaching, a northward wind was blowing towards the village at a velocity ranging from 1.0 to 2.1 m/s.
(4)	Circumstances affecting the occurrence of damage: Immediately after the accident, the plaintiffs reported symptoms indicative of exposure to hydrofluoric acid. As a result, some were transported to the emergency room, while others received treatment at the hospital. Given the absence of any other probable causes, the plaintiffs’ shared symptoms were attributed solely to the exposure.

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 findings, given that most of the hydrogen fluoride in the body is released through urine within a 24-hour period. Moreover, despite the findings from an 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 climate conditions.

In a previous ruling, the Supreme Court outlined the burden of proof borne by plaintiffs, stating that plaintiffs must demonstrate: (i) the emission of hazardous substances, (ii) the inflow of such emissions, and (iii) the occurrence of damages. If the plaintiffs successfully demonstrate the three mentioned factors, causality would be presumed. Defendants then 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 exists another sole cause attributable to the accident.

However, per this Supreme Court decision, it is no longer necessary to prove a direct causation between the discharge of pollutants from the facility and the resulting damages to the plaintiffs. 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 can be presumed. This legal principle would significantly lighten plaintiffs’ burden of proof on proving causation.

Based on the Supreme Court’s decision, it is anticipated that future victims of environmental damages will actively pursue environmental litigation to seek compensation. Therefore, business owners are advised to establish a robust compliance system and fulfill their obligations related to potential causes of environmental damages, by complying with all laws and regulations governing 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.

[Korean Version]

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