The injured parties should gather evidence to demonstrate the extent of the damage. The chances of a trial will be assessed once the culprits have been identified.
For the time being, we do not know the possible perpetrators or the exact damages caused by the poisoning of the Oder. However, many companies, not only the tourist companies of Western Pomerania but, e.g. the Angling Association, are already estimating them. There are also questions about the order of the injured parties’ actions from the legal side and their chances of compensation.
Lawyers agree on one thing: only after the perpetrator or perpetrators of the river contamination have been identified will there be time to file a claim. Then, the aggrieved will also be able to assess the chances of success of the specific legal steps.
THE CAUSE MUST BE ESTABLISHED
“First, we need to identify the causes of the contamination and the exact course of actions of both the persons or companies directly responsible for the water contamination and the services responsible for environmental protection, removing the consequences of the catastrophe, and providing information during the emergency operation. Their failure to take proper action may result in liability for damages,” points out Dominik Galkowski, attorney-at-law, partner at Kubas Kos Galkowski law firm.
“It is still necessary to wait with the claim for damages, as the final cause and course of events must first be known. Then it will be possible to establish possible liability,” adds Dominik Galkowski.
The responsible party may be a manufacturing plant or several plants simultaneously or the officials and authorities responsible for environmental protection or damage removal.
“One cannot rule out that, along with the direct perpetrator, e.g. the poisoning plant, the State Treasury may also be responsible for the damage if, after the circumstances of the river poisoning have been clarified, it is possible to speak, for example, of delayed or ineffective actions of officials aimed at preventing the damage or reducing its extent. Once these findings are made, the aggrieved party “only” has to prove the amount of its damage and the causal link between its occurrence and the unlawful conduct of the direct perpetrator or the State Treasury,” suggests Radosław Górski, attorney-at-law.
THE STATE MAY ALSO BE GUILTY
“The condition for constructing an effective claim for damages against the State Treasury is to demonstrate that the damage was caused “in the exercise of public authority”.
“Thus, that the state authorities (or local authorities) neglected their duties or performed their environmental protection duties improperly (their fault is not a necessary prerequisite for liability for damages), explains Wojciech Kozłowski, attorney-at-law at Dentons law firm.” The claimant seeking damages must also demonstrate the damage and its causal link to the authority’s reprehensible action (tort). Thus, if, after reconstruction of the facts, it turns out, for example, that due to the drought, even emptying the storage reservoirs would not have prevented the damage, which would have occurred anyway, then there will be no causal link,” adds Wojciech Kozłowski.
It is possible that if material negligence is established, the prosecution will decide to bring criminal charges against those responsible for the current state of affairs, and the investigation and then a possible trial will provide additional evidence. It should be remembered that the burden of proof is on the applicant for compensation, so the injured should already seek to document their losses and lost profits.
By its very nature, compensation should cover all losses of the injured party, whether it is, for example, the owner of a plot of land by a river infected by its water or a hotel losing customers.
“However, it may turn out that no perpetrators of the Oder poisoning can be identified or that there are no entities responsible for this poisoning: it will be the result of circumstances for which no one is responsible – for example, force majeure. In such a case, the burden of the damage will be borne by the injured parties, who will not be able to effectively claim compensation, perhaps apart from possible compensation under an insurance contract for their business activities,” points out Marcin Ciemiński, PhD,attorney-at-law at Clifford Chance.
Edited by: Marek Domagalski
The text was originally published in Rzeczpospolita, 21 August 2022