By Vasu Singh
“Tortious liability arises from the breach of duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages”[1] Tort is a civil wrong and Tort law focuses on reparation and not punishment, tort law focuses on corrective justice, which is concerned with correcting a wrong. Environmental law is an umbrella term which includes all the statutes, regulations and laws dealing with the issue of environmental harm. The basic distinction between environmental laws and torts dealing with harm to the environment is that the laws are concerned with protecting the health of the general public, whereas torts are used when there is a need to rectify the damage caused to the individual.
Prior to the Bhopal gas tragedy, the laws that existed in India mostly focused on specific kinds of pollution, but after the tragedy, the Government of India felt the urgent need to enact separate legislation dealing which can lay down the framework for the state to protect the environment, hence, they enacted the Environment (Protection) Act, 1986.
In the context of Environmental harm, torts do not directly come into action, but there are majorly 4 types of already established torts which can be applied when any environmental harm is done: negligence, trespass, nuisance and strict liability.
Negligence
“Tort liability is predominantly fault based liability and in tort fault typically means negligence. The pre-condition of foreseeability of harm is pre-condition of liability under the principle of Rylands v. Fletcher. The polluter pays principle is usually assumed to dictate strict liability.”[2] The tort does not focus on the risk; it focuses on the harm and the probability of harm is an important element of negligence. The harm which occurs to another person whenever there is a duty to take care of and the same is not taken, amounts to negligence. The plaintiff must show the duty of the defendant, the breach of the same duty and the injury caused by the breach of the same duty to the defendant.
In the case of Naresh Dutt Tyagi v. State of U.P., 1993 Three children and a foetus in the mother’s womb died after the fumes escaped form the pesticides stored nearby, the court held that this was a clear instance of negligence.[3] Another case dealing with the tort of negligence with respect to environmental harm is Mukesh Textile Mills v. Subramanya Sastri, 1987[4] where the appellant used to store molasses in the tanks in his sugar factory which is a by-product in the manufacturing of the sugar which was nearby to the respondent’s land and only separated by the water channel. One day the tanks collapsed into the water channel and flowed into the water channel which destroyed the respondent’s paddy field. In this case, the court held the appellant liable mainly on the two grounds:
· Firstly, the appellant owed the duty of care which was not properly performed by him by storing the large quantity of molasses without any proper care. Furthermore, the court held that the appellant could reasonably foresee this damage which was likely to be caused,
· Secondly, the court also held that the appellant put his land to the non-natural use for which his liability arises to many folds.
The court held the appellant liable for negligence.
NUISANCE
Nuisance is said to be done when there is any unreasonable and unlawful interference or annoyance. Nuisance can be both public and private in nature. The interference concerning to the environmental harm which comes under nuisance can be fumes, heat, smell, noise, germs, leakage of gas etc. Nuisance includes all and any act which visibly affects the comfort, health, safety and quality of the person’s life.
In the case of Ram Baj Singh v. Babu Lal, 1981 [5]a brick grinding machine was built in front of a chamber of a medical practitioner. The machine was generated lot of noise as well as the dust which resulted in the polluting of the nearby area and cause problems to the medical practitioner and the patients. The court held that this falls under the tort of private nuisance as it caused discomfort and annoyance. The court highlighted noise pollution here as the persons were unwillingly exposed to the dangerous levels of noise.
Nuisance with regards to the tortious liability of environment harm was also highlighted in another landmark judgment of Free Legal Aid Cell v. Govt. of NCT of Delhi, 200[6]1: An association of public activists filed a petition in public interest, regarding the use of fireworks during wedding processions and festivals which results in many adults as well as children to suffer physically and mentally. It also includes the grievance involving the use of loudspeakers which caused the noise pollution. The Delhi High Court highlighted the need of the Indian Judicial system to shift their attention towards the effects of noise on the health of the people. The court held these acts under the nuisance especially the noise, which should be regarded as a pollutant.
Trespass
Trespass is said to be done when there is an intentional and deliberate invasion and interference with the property of the plaintiff. The invasion and interference have to be direct and tangible. There are two elements necessary to constitute the tort of trespass:
· There should be intentional interference,
· The interference should be direct.
Trespass is actionable per se in the nature. Relating the tort of trespass with the environmental harm, the deliberate placement of waste causing the land pollution and air pollution, and also not letting the plaintiff enjoy his property is an example of this tort.
In the case of Sammons vs Gloversville[7], Cayadutta creek which was polluted flowed near the Sampson Sammons’ New York farm. The reason of the polluting of the creek was the emptying of the drains and sewers by the city of Gloversville, city of Johnstown and also several tanneries did the same into that creek, resulting in the fouling of the water and the garbage on the bank of that creek. The court held that Mr. Sammons’ property was trespassed by the waste disposal by the city of Gloversville into the creek. Also, the court issued the injunction prohibiting Gloversville from polluting the creek by discharging the sewer in it and ordered the city to build and alternative sewage system. After this case, it became general practise in the courts of New York to enjoin trespass in such cases.
Strict Liability
Strict Liability is one tort which is the most directly linked to the environmental harm. Also known as the no-fault liability it does not require any proof of fault, the defendant in this tort is held liable for the damages, irrespective of whether they were negligent or not. The defendant is prima facie responsible for the damages if he brings or keeps anything which may likely to cause mischief.
The Strict Liability rule was laid down in the case of Rylands v. Fletcher[8] in which Fletcher had a coal mine and Ryland, who wanted to build a water reservoir on his for the purpose of storing water employed an independent contractor for the construction of said reservoir. While working, the contractor failed to seal the shafts resulting in the leakage and the water flowing to the coal mine of Fletcher which resulted in Fletcher suffering heavy losses. The court when hearing this case laid down the principle of strict liability.
One of the India’s landmark cases dealing with the similar Strict Liability principle is M.C. Mehta v. Union of India, 1986[9] in which Shriram Food and Fertilizer Industry was manufacturing dangerous chemicals. One day Oleum gas leaked from one of the units in Delhi which resulted in the death of many people. The leakage was caused by both mechanical and human errors. After two days another leakage, a minor one happened for their pipes causing terror in the people. The company was forced to stop their manufacturing. M.C. Mehta filed a PIL in the Supreme Court in order to claim compensation for the losses caused by the leakages. The Court highlighted the principle in the landmark judgement and ordered the company responsible for the leakages to obtain various licenses in order to restart their manufacturing.
Conclusion
Various laws deal with the environmental harm of the cure, but when under torts it deals with the cure rather than the prevention. Tortious liability provides the tools for legal entities and individuals to be held liable for their actions through negligence, nuisance, trespass and strict liability. Upholding the principles of ‘justice, equity and good conscience’.
The author of this article is Vasu Singh, a first-year LLB student at Symbiosis Law School, Pune.
[1] Winfield and Jolowicz on Tort by W.V.H. Rogers, 12th Edn., 1984
[2] TORTIOUS LIBILITY FOR ENVIRIONMENTAL HARM: A TALE OF JUDICIAL CRAFTMANSHIP Dr. Madhuri Parikh
[3] 1995 Supp (3) SCC 144
[4] Dr. Paramjit S. Jaiswal, Vibhuti Jaiswal, Environmental Law- Page 25
[5] AIR 1982 ALL. 285
[6] AIR 2001 DEL 455
[7] 74 N.Y. Supp. 1145
[8] UKHL 1, L.R. 3 H.L. 330
[9] AIR 1987 SC 1086
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