This article is written by Bhanvi Juvekar, a student pursuing B.B.A.LLB(Hons.) from Unitedworld School of Law (UWSL, Karnavati University). This article explores the usage of tort law in cases related to environmental pollution and further analyses its evolution into the principle of absolute liability.
Pollution is a matter of global concern. The causes of environmental pollution can be traced back to human actions such as littering and contamination of the environment by companies dealing with hazardous substances.The actions of those causing pollution affect an individual directly or indirectly. The acts of a person should not interfere with the rights of others. To ensure that individuals who have suffered due to environmental pollution get justice, compensation is provided under tort law. This article explores the use of tort law as a remedy seeking instrument. Now, we know that there are statues for the prevention of environmental pollution so the question that arises is that:
Why use tort law for environmental pollution related remedies?
The statute that exists against environmental pollution is the Environmental Protection Act, 1986. This act was enacted after the unfortunate and gruesome case called the Bhopal Gas Tragedy.
Although it appears that the environmental Protection Act is sufficient to deal with the cases related to pollution of land, water, and air etc. but essentially speaking the scope of the act is a bit narrow. It basically implies that the act is just of a preventive nature while the tort law also works as a remedial tool.The only way victims of environmental pollution can seek justice is by demanding compensation.
Furthermore, this act gives way to a loophole because the radical approach to the system of locus standi(cause of action) is dissolved by the requirement of a sixty-day notice which allows the offender ample time to annihilate all kinds of evidence or follies on his part.
Often times, environmental pollution is caused by large companies (eg. Chemical companies) that harm an individual and/or his property. Since litigation is a very expensive process, it is hard for an individual to take the protection of statutes. The protection of statutes is not sufficient. For individual claims tort law is a preferable option as it focuses on providing damages to the injured party. It remains effective even after so many years have passed since independence.
Thus, tort law in addition to statutes provides a legal method to acquire compensation when a person is harmed due to environmental pollution caused by another.
But as we know that tort law can be used only when there is personal damage to property or body. Environmental pollution affects the environment at large, thus tort law can be used only when there is environmental damage.
Environmental pollution under tort law
Environmental pollution can be a part of tort law under the following categories in India-
- Negligence, and
- Strict Liability.
Tort of nuisance
It is said that the deepest doctrinal roots of modern environmental law are found in the common law principles of nuisance.
Nuisance is the unlawful interference with a person’s use and enjoyment of his own land/property. It can be attributed to any sort of disturbance that hampers one’s ability to enjoy his space without hindrance.
For a person to bring charges for the same, one must prove that he is facing unnecessary disturbances. The actions of the defendant have to be unreasonable in order for an act to be considered as a nuisance.
Nuisance can be of two types:
- Public nuisance: Public nuisance is caused when the action of one affects many individuals or affects a community at large. It is an act or omission that affects the health, safety, and/or the dignifiable standard of living of many people at once.
For example, in the cases of:
Ram Lal vs Mustafabad Oil And Cotton Ginning(1968): It was held that when the noise level crosses a certain threshold value it should be considered as a public nuisance. It falls under the category of noise pollution. It is a public nuisance as it causes discomfort to many at once.
It is important to note that it does not matter whether the activity that caused harm was legal. The fact that it is causing harm is enough to award compensation.
- Private nuisance: Private nuisance is caused when a person is harmed individually. This can happen in two scenarios:
- The pollution causes harm to only an individual and does not affect many people.
- The pollution caused harm to a group of people but that person suffered additional harm individually apart from the harm that is caused to everybody in that group.
In cases of nuisance, to determine liability it is important to look at two factors:
- Foreseeability: If the accident/incident was foreseeable and could be prevented then the defendants are to be held liable.
Eg. In the case of- Overseas Tankship (U.K.) Ltd. v. Miller S. S. Co. Pty.(1966) oil was spilt from the ships of the defendants which caused a fire and caused harm to the plaintiffs. It happened due to the carelessness of the defendants which means that the incident was foreseeable. The defendants were held liable.
- Reasonableness: In nuisance cases, the burden of proving unreasonableness is often difficult because the reasonableness of the defendant’s conduct is determined by weighing its utility against the gravity of harm to the plaintiff.
Trespass is an unlawful interference with one’s property. Trespass is entering someone’s property by breaching its boundaries without the owner’s permission. Thus to claim trespass:
- Trespass is a direct offence. One has to show that somebody/ some substance entered their property causing harm.
The fact that trespass has to be a direct offence is an important factor because it is the only point that distinguishes it from nuisance.
- Trespass has to be intentional in nature.
- It is also important to note that it is not necessary to show harm in cases of trespass. It is only important to show that an object or a person entered the plaintiff’s property without their permission.
In the case of Fairview Farms, Inc. v. Reynolds Metals Company(1959), there were airborne liquids and substances on the plaintiff’s property which were considered to be trespass. The defendants were held liable and an injunction was not provided because the defendants rectified their position so that no further harm is caused.
There are situations when an individual/company fails to take reasonable care. Due to a lack of exercise of due obligation and failure to fulfill their duty to take care, the damage is caused to another party. This act/omission to not take reasonable care is called negligence.
Care is an abstract term therefore, the question is: how do we know if sufficient care was taken or not?
- To determine whether reasonable care was taken or not it is important to know the degree of relation between the act of negligence and the accident.
- It is important to know that if the party was truly not negligent and had exercised care, then the said incident would not have taken place. Thus, reasonable care has to be determined by looking at the degree of damage caused.
- Reasonable care can only be exercised if the risk is known and the harmful events could have been foreseen. Thus, reasonable care will be measured with respect to the risk taken and the degree of harm caused to the victims.
For example, the case of Hagy v. Allied Chemical & Dye Corp(1953). In this case, the plaintiff blamed the defendant for harm caused to her larynx. This harm according to her was caused when she drove through a smog covered area with her husband. This smog she said contained sulphuric acid components leaked from the defendant’s plant negligently.
In this case, it was difficult to establish a connection between the injury and the negligent act. This was because the larynx was cancerous and she would have to undergo surgery even if she had not driven through the smog-filled area. As one can safely interpret from the above explanation that since a connection was not established between the act of negligence and injury caused it was impossible to hold the defendants liable.
Another aspect of negligence is that: Negligence overlaps with the provision of nuisance. This can be seen in cases where the negligent act extends for a long period of time causing unlawful interference with one’s enjoyment of land causing a nuisance. For example, in the case of Rylands v. Fletcher(1868) if the negligent act allows the escape of a non-natural and dangerous thing which the defendant has brought on his land.
In the case of Naresh Dutt Tyagi v. State of Uttar Pradesh(1993), fumes released from the pesticides leaked to a nearby property through ventilators that resulted in the death of three children and foetus in a pregnant woman. It was held by the court that it was a clear-cut case of negligence.
The upside of claiming negligence is that the defendants have to prove to the court and convince the judge that their actions/omissions were not negligent. It is up to the defendants to prove that reasonable care was taken and all preventive measures were in place to prevent a harmful accident. If the defendants fail to prove their innocence then damages are provided to the plaintiffs. This way the tort law also cautions major firms against not taking reasonable care. Once damages are awarded in one case, to shut off exposure to prosecution, companies start taking measures to prevent environmental pollution which could cause harm to someone’s life or property.
Tort law also constitutes the Doctrine of Strict Liability. Strict liability means that a person has to show that he/she did not voluntarily participate in the said incident as a result of their own actions. The Doctrine of Strict Liability is also known as liability without fault. A person who brings upon himself perils through his own negligent actions is not awarded damages.
The downside of this is that the burden of proof rests on the shoulders of the plaintiff. In environmental pollution-related cases, it becomes very hard to prove and bring forward evidence against the defendants. This doctrine was talked about in detail in the case of Rylands v. Fletcher(1868).
Due to its disadvantages, the principle of Absolute Liability was developed which is discussed below:
This case is considered a landmark judgment because the principle of Absolute Liability was developed fully in this case.
In this case, there was a leak of oleum gas from Shriram food and fertilizers Ltd situated in Delhi. Oleum is a poisonous gas.
The principle of absolute liability states that the liability in such cases is not a function of defences under strict liability such as self participation, act of god, etc.
Absolute liability means an exceptional condition where the liability of the accused party is so grave that no form of defence employed is sufficient excuse for their non-performance of practising reasonable care and failing to recognize their duty towards the society and environment. Absolute liability is especially important in cases when irreparable and grievous harm is caused.
In this case, the Deep Pocket theory was also formulated. This meant that the larger the corporation is, larger will be the damages paid by them to the hurt.
- Bhopal Gas Tragedy
In the Bhopal Gas Tragedy (Union Carbide Corporation vs Union Of India Etc, 1989) case many died in the city of Bhopal due to the leak of Methyl Isocyanate gas. It caused the instant death of millions of people who came in contact with the gas. The gas leak polluted water and land of Bhopal which rendered the use of two of the most essential substances for survival useless. Since the land and water were polluted, generations suffered and continue to suffer because of birth deformities.
In this case, because such grievous harm was caused, India realized the importance of checks and balances and enacted the Environment Protection Act 1986. This case also opened gates for the principle of absolute liability as the duty of care and liability of the defendant was large and inexcusable. The death of millions cannot be excused on the basis of any defence.
This article takes one through the different ways in which tort law can be used as a remedy for damages caused due to environmental pollution.
A close analysis leads us to safely interpret that the scope of the tort of nuisance and negligence is far-reaching.
The two most gruesome incidents and landmark cases that participated in the shaping of environmental tortious claims in India were caused due to negligence on the defendant’s part.
At that time, India was also experiencing massive industrial changes that led to the setting up of many companies that were in the business of hazardous substances.
Thus, it is safe to interpret that the evolution of tort law in relation to environmental pollution has paved a pathway for those who are harmed by the same to gain compensation. It has also cautioned companies in the business of hazardous substances towards their liability. This evolution has made way for better administration of justice. Further evolution of the principle of Absolute Liability (the only part that is unique to the needs of India and has not been adopted from English law) demands greater accountability and protects rights through remedy/compensation. It is accepted that threat to one’s life is a grievous crime and cannot be excused under any circumstances.
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