Law of Torts and Environment
Introduction
Litigation related to environmental contamination and toxins has grown at a rapid pace, as businesses come under greater scrutiny for their environmental practices and face potentially costly claims. Industrialization has posed serious concern for the protection of environment. If we follow the development around the world in last two decades or so, it is clear that both judicial and legislative processes have applied the yardstick of ‘Strict or Absolute Liability’ to judge the conduct of the polluters. A toxic tort is a special type of personal injury lawsuit in which the plaintiff claims that exposure to a chemical caused the plaintiff’s toxic injury or disease.
Hazardous and Inherently Dangerous Activities
Strict liability for ultra-hazardous activities might also be considered a general principle of law as it is found in the national law of many states in relation to ultrahazardous activities. Under the English law,’ a person who for his own purposes brings on his own land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape’ as laid down by the landmark judgment of Ryland v. Fletcher
Absolute liability for the harm caused by industry engaged in hazardous and inherently dangerous activities is a newly formulated doctrine free from the exceptions to the strict liability rule in England. The Indian rule was evolved in MC Mehta v. Union of India, which was popularly known as the Oleum gas leak case. It was public interest litigation under Article 32 of the Indian constitution.
In the judgment, on the substantive law it was emphasized that the principle of absolute liability should be followed to compensate victims of hazardous and inherently dangerous activity’. Industries engaged in such activities are absolutely liable to compensate those who are affected by the harm arising from such activities.
Some Important Legislations
Legislation in the late 80’s and the 90’s reflect the law’s growing recognition of the capacity of ‘hazardous substances’ to cause damage to person, property and the environment. The Bhopal Gas Disaster and the judgement of the court in the Oleum Gas Leak case were the prelude to the Environment (Protection) Act 1986, the Factories (Amendment) Act 1987 and the Public Liability Insurance Act, 1991 (PLIA). The UN Conference on Environment and Development held at Rio de Janeiro in 1992 provided further spurt, as did environmental activism and environmental litigation. The National Environmental Tribunal Act, 1995 (NETA) is the most recent in the field of ‘accident’ law. The long title to the Act suggests that it is enacted to provide for strict liability for damages arising out of any accident occurring while handling any hazardous substance and for establishing a National Environmental Tribunal.
The NETA and PLIA are both concerned with the aftermath of the same occurrences. While the PLIA deals with interim compensation, the NETA established a tribunal, and provides guidelines, to adjudicate all claims arising out of “accidents”. There are points of convergence as well as difference, between the two Acts. The principles of liability and of compensation according to an enacted schedule are common to the PLIA and the NETA. Both legislations provide for no fault liability, making the “owner” liable for paying compensation assessed under the Acts. Both legislations exclude “workman” who is covered by the Workmen’s Compensation Act. However, while PLIA resorts to the device if insurance to spread risk and cost and requires the owner to go deep only where it goes beyond the limits set in the PLIA rules and the capacity of the Environment Relief Fund (ERF), the NETA appears to leave it to the owner to find the resources to pay compensation. There is a penal provision in the NETA which provides for a term of imprisonment up to three years , or fine which may extend to Rs. 10 Lakhs or both, where any person “fails to comply with a order made by the Tribunal”.
Confronted with the possibility of mass torts resulting in injury, and loss to a number of victims, the more visible efforts of the state are in the direction of expediting the computing and payment of compensation. There is a consequent delinking of these issues from questions of culpability, answerability and of safety. The schedule to the Act lists out the heads under which compensation may be claimed. It includes harm caused to the person, damage, loss or destruction of private property, expenses incurred by the government in the aftermath of an accident claims connected with harm, damage or destruction of fauna, flora and the soil, air, water, land and ecosystems; loss of business or employment and a residual head to cover “any other claim arising out of, or connected with, any activity of handling of hazardous substance”.
It is significant that there is no priority of claims. The crediting of the amount ordered to be paid on the ground of damage to the environment into the ERF merits scrutiny, particularly since the amounts in the ERF are intended to be used as a buffer between the exhaustion of insurance payments and the liability of the owner to cover the difference under the PLIA.
The unresolved questions of liability of the state as a joint tortfeasor, and of compensation resurfaced in Naresh Dutt Tyagi v. State of U.P. In this case, the Primary Cooperative Society, Garh Mukteshwar, District Ghaziabad, said to be a federating unit of the U.P. Cooperative Union Ltd. stored certain chemical pesticides in a godown. Fumes emanating from the pesticides leaked to the contiguous property through the ventilators killing three children and causing the petitioner’s wife to miscarry. Proceedings to establish fault were on when the Supreme Court was approached to rule on “whether such large scale stocks of hazardous chemicals are permissible to be stored in a residential block, whether the storage is regulated by statutory provisions, if not , whether any breach of common law duty has occurred and whether the governmental authorities are liable in damages.
Civil Procedure Code, 1908
Under the Civil Procedure Code of 1908, civil suits against the perpetrators of public nuisance were allowed. By the amendment of the Civil Procedure Code in 1976, the procedure was made easier for the general public to seek recourse in the civil courts. Section 91 of the Code now reads as follows:
Public Nuisances and other wrongful acts affecting the public:-
(1) In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction on for such other relief as may be appropriate in the circumstances of the case, may be instituted,-
(a) By the Advocate-General, or
(b) With the leave of the court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provision.
Prior to the amendment in 1976 such suits were allowed only with the sanction of the Advocate General. Thus a modification was brought about to the standing requirement which had been an obstacle in civil actions against environmental degradation. This is an important instance of early relaxation of procedural rules in the wider context of developing Indian public interest litigation.
Order 1 Rule 8 under the Civil Procedure Code of 1908, as amended in 1976 complements the above section and is significant for environmental litigation in India. This rule permits one person to sue or defend on behalf of all having the same interest in what are known as representative suits over a single cause of action. Where the interest of the community at large is affected, the court has the power to direct one person or few to represent the whole community so that members of a class should have a common interest in a common subject matter and a common grievance and the relief sought should be beneficial to all. This rule is an enabling provision and does not prevent an individual from pursuing the same matter on his own right to seek relief.
An important feature of the civil litigation strategy adopted in India is the resort to injunctive relief rather than damages. Although in theory damages form an important principle in a tort action, in practice injunctive relief is used more in India for abating pollution. Lawyers in India, intent on abating pollution, often seek a temporary injunction against the polluter followed by a perpetual injunction on decree.