Per- and polyfluoroalkyl substances (“PFAS”) are a group of synthetic fluorinated substances. PFASs are “forever chemicals” because they do not break down via a natural processes and are subject to significant regulatory action. 

Recently the Swedish Supreme Court t-486-23-eng.pdf ( dealt with a PFAS liability claim arising from drinking water contaminated with PFAS. 

The court held that the increased risk of adverse health effects in the future did not in itself constitute, with certainty, personal injury but that significant personal impairment that was manifested in the high concentrations of PFAS in the blood of each and every one of the appellants in the case was deemed to constitute such bodily injury which was a personal injury as defined under tort (delictual) law. 

The court had earlier determined that, under the applicable product liability law, because the drinking water contained very high levels of PFAS, the water was a defective product as contemplated in the law. 

The court did not deal with the extent to which those personal injuries as determined have given rise to damages conferring a right to compensation and the amount of compensation. 

The interesting dissenting opinion articulates the traditional approach to cases of this sort.  That approach is that the increased risk of an adverse health affect that occurs in the future cannot in itself constitute a personal injury.  For personal injury to exist a change in the body must have already occurred and the change must objectively constitute significant impairment. It was impossible on the evidence to draw any firm conclusions regarding how PFASs affects the body of an individual person or to conclude that a certain level of PFAS in the blood is regularly associated with a noteworthy impairment of the body that is required for the change to constitute a personal injury.  Even taking into consideration the high levels of PFAS measured in the appellants, it could not be deemed proven that each and every appellant had suffered a personal injury as contemplated under the relevant legislation, said the dissenting judge. 

PFAS liability exposure may exist in some circumstances but:

  • PFAS are everywhere;
  • they don’t break down in soil or water;
  • clean up of water contamination is and will be a huge cost. 
  • there is currently no known signature disease related to PFAS;
  • diseases possibly caused by PFAS have various other possible causes;
  • exposure outside the workplace is not rare for PFAS;
  • there may be a challenge to linking specific PFAS compound exposure to a specific product;
  • there is difficulty in linking a specific product to a specific defendant;
  • the causal chain is complex and not necessarily straightforward. 

It is likely that in South Africa the immediate risk and liability exposure, including that for insurers, lies in the context of class action litigation supported by litigation funders. 

All those in insurance, including attorneys and other service providers, should consider their possible PFAS liabilities. Some insurance policies do exclude PFAS liability claims.