A recent decision of the Queensland Supreme Court was interesting in the context of discussing the authorised use of substances which are later found to be damaging to the environment (or humans for that matter), something which has been fairly topical in respect of asbestos, engineered stone, amongst other things.

The decision has been made in a proceeding by the Toowoomba Regional Council against the Commonwealth claiming negligence, public nuisance, and breach of statutory duty associated with the Commonwealth’s historic use of substances known as Aqueous Film Forming Foam (“AFFF”) which contain per – and ply – fluoroalkyl substances (“PFAS”). 

The decision related to an unsuccessful attempt on the part of the Commonwealth to strike out allegations that the Commonwealth knew or ought to have known of the risk to the Council’s human health and the environment by the use of the substances, contending that:

  1. The Commonwealth had been responsible for conducting Department of Defence activities at Oakey;
  2. From 1977 until at least around 2004, the Department conducted activities at Oakey using AFFF known as 3M Lightwater, which contained PFAS;
  3. PFAS contamination was identified in an aquifer near Oakey, and in soil in and around Oakey;
  4. For at least part of the period of the use of the AFFF, the Commonwealth knew or ought to have known of the risks.

The decision does not detail the type of risks to human health and the environment which might come about from the presence of PFAS.  It appears that class actions had been commenced against the Department of Defence based on its use of AFFF. For those with an interest in the concepts of AFFF, apparently the film “Darkwater” deals with its creation and risks in a fictionalised format.   In Australia, bans have progressively been made restricting the use of the substances.

The proceeding was commenced in 2018 and continues.  A review of the file information on the court’s “ecourt” site suggests that it current has 267 filed documents and is clearly a proceeding of mammoth proportions.  No doubt it is of a matter of particular significance to inhabitants of Oakey in particular.