Common Law Remedies

Download as docx, pdf, or txt
Download as docx, pdf, or txt
You are on page 1of 24

Introduction:

Blowing from the direction of his neighbor's lime kiln, the wind carried corrosive quicklime
dust onto plaintiff's fruit orchard, killing trees. Plaintiff sued. The court in assizes ruled: "He
shall have his write." 4 Edward III, Lib. Ass. Pl. 3. It was England. It was 1331 A.D. It was
the dawn of environmental common law.

Environmental common law is almost all tort law. Typically the tort is pollution of the air or
water. The remedies sought may be either at law or in equity. In addition to the body of case
law that has built up over the centuries, statutory enactments in modification of the common
law are of great importance. Environmental common law is dominated by the common law of
nuisance, with contributions from other theories, such as trespass and strict liability. Reading
the cases, it is not always clear what the theory of liability is. Knowledge of theory may not
be important for the litigant, but, for the legal researcher and the advocate, it is nevertheless
important to be mindful of what has gone before in environmental common law. Common
law is the source for and a place from whence useful concepts in environmental law continue
to be appropriated.

Page | 1
Common Law:

Even before the specific laws came into force, there was ‘certain common law remedies’
against ‘environmental pollution’.1 The origin of common law may be traced in England.
2
This law came in to existence largely as a result of activities of the Royal Courts since the
era of Norman Conquest.3

‘Common law’ is the body of customary laws of England which is based upon judicial
decisions and is embodied in the reports of the decided cases.4 Common law had been
administered by the common law courts of England since the middle ages.5 All the English
speaking countries, as also the countries that have been or still are linked with England, save
certain exceptions, are members of 'he Common Law Family. In the legal systems of such
countries also, the courts administer the common law.6

This Chapter of my thesis seeks to examine the various common law remedies against
environmental pollution and also to explore the various laws which directly or indirectly
provide environmental protection under the Indian legal system.

Actions brought under tort law are among the oldest of the legal remedies to abate pollution.7
Most pollution cases in tort law fall under the categories of nuisance, negligence and strict
liability.8 To these traditional categories, the Supreme Court of India has added a new class
based on the principle of ‘absolute liability’9. This norm was developed by the Court in the
post -Bhopal period in response to the spread of hazardous industries and was later adopted
by the legislature.10

1
Mahesh Mathur, Legal Control of Environmental Pollution : Jurisprudence and Laws Applicable to
Environmental Violation and Prevention , (1998), p. 153.
2
Ibid.
3
D. C. Jain and A.K. Mathur, Comparative Law, p.37, as cited in Mahesh Mathur, ibid.
4
V.K. Beena Kumari, 1 Environmental Pollution and Common Law Remedies' in P. Leclakrishnan, Law and
Environment, (1992), p. 103.
5
Encyclopedia Britanica, (1964). Vol. 6, p. 160.
6
Supra n. 53.
7
Shyatn Divan and Arinin Roscncranz, Environmental Law and Policy in India : Cases, Materials, and Statutes,
(2001), p. 88.
8
Ibid.
9
M.C. Mehta Vs Union oflndia, A.l.R. 1987, S.C. 1086.
10
Both the Public Liability Insurance Act, of! 991, and the National Environment Tribunal Act of 1995, adopt
this norm.

Page | 2
The rules of tort law were introduced in to India under British rule. Initially, disputes arising
within the Presidency towns of Calcutta, Madras and Bombay were subjected to common law
rules.11 Later, Indian Courts outside the presidency towns were required by Acts of British
Parliament and Indian laws to reconcile disputes according to justice, equity and good
conscience where there was no applicable statute12. Consequently in suits for damages for
torts (civil wrongs), courts followed the English Common law, in so far as, it was consonant
with these principles. By the eighteenth century, Indian Courts had evolved a blend of tort
law adapted to Indian conditions.13 Common law based tort rules continue to operate under
Article 372 of the Indian Constitution which ensured the continuance of existing laws.

In Vellore Citizen’s Welfare Forum Vs Union of India,14 the Supreme Court traced the source
of the constitutional and statutory provisions that protect the environment to the ‘inalienable
common law right’ of every person to a clean environment. Quoting from Blackstone’s
Commentaries on the English Law of Nuisance, published in 1876 the Court held that since
the Indian legal system was founded on English common law the ‘right to a pollution free
environment’ was part of the basic jurisprudence of the land.15

11
‘Common Law' refers to the customary laws of England derived from judicial decisions, it contrast with
legislative enactments.
12
S. Desai and K. Desai. Ramaswainy Iyer's The Law of Torts, (1987). p. 21, as cited in Shvan Divan and Armin
Rosencranz. Environmental Law and Policy in Indio : Cases, Material. and Statutes. (2001). p. 88.
13
M. Setalvad. The Common Law of India. (1960). p. 53. as cited in Shyam Div an, ibid.
14
A.I.R. 1996 S.C. 2715.
15
Ibid at p. 2722.

Page | 3
Damages and Injunction:
A plaintiff in a tort action may sue for damages or an injunction, or both. Damages are the
pecuniary compensation payable for the commission of a tort Damages may be either
‘substantial’ or ‘exemplary’. Substantial damages are awardees to compensate the plaintiff
for the wrong suffered. The purpose of such damages b restitution i.e., to restore the plaintiff
to the position he or she would have been in the tort had not been committed. Such damages,
therefore, correspond to a fair am reasonable compensation for the injury.

Exemplary damages are intended to punish the defendant lord the outrageous nature of his or
her conduct, as for instance, when he or she persists in causing a nuisance after being
convicted and, being fined for it.16 The object of the court, in such cases, is to deter the
wrongdoer. The deterrence objective has recently prompted the Supreme Court to add a fresh
category to the type of cases where exemplary damages may be awarded, namely, when harm
results from an enterprise’s hazardous or inherently dangerous activity. , In the Shriram Gas
Leak Case,17 oleum gas escaped from a unit of the Shriram Foods and Fertilizer Industries
and injured a few Delhi citizens. The Court observed that in such cases, ‘compensation must
be correlated to the magnitude and capacity o f the enterprise because such compensation
must have a deterrent effect. The larger and more prosperous the enterprise, the greater must
be the amount of compensation payable by it……..’’.18

Damages, awarded in tort actions in India, are notoriously low, and pose no deterrent to the
polluter. Lengthy delays in the adjudication of cases combined with chronic inflation dilute
the value of any damages that a successful plaintiff may receive. Consequently, although, in
theory damages are the principal relief in a tort action, in practice injunctive reliefs are more
effective in abating pollution. Accordingly, litigation strategies must shift away from the
conventional common law emphasis on damages. Lawyers in India, intent on abating
pollution, may seek a temporary injunction against the polluter followed by a perpetual
injunction on decree. Damages should be viewed as a bonus.

An ‘injunction’ is a judicial process, where a person, who has infringed or is about to infringe
the rights of another, is restrained from pursuing such acts. An injunction require a partly to
refrain from doing a particular thing or to do a particular thing.

16
J.C. Galstaun Vs Dunia Lai Seal, (1905) 9 CWN 612,617. See also Shyam Divan and Armin Roseneranz,
Environmental Law and Policy in India: Cases, Materials, and Statutes, (2001), p. 89.
17
M.C. Mehta Vs Union oflndia, A.l.R. 1987 S.C. 1086.
18
Ibid at p. 1099.

Page | 4
Injunctions are granted at the discretion of the court.

Injunctions are of two kinds, temporary and perpetual. The purpose of temporary injunction
is to maintain the state of things at a given date until trial on the merits. It is regulated by
Sections 94 and 95, as well as, Order 39 of the Code of Civil procedure of 1908. It may be
granted on an interlocutory application19 at any stage of a suit. It remains in force until the
disposal of the suit or until further orders of the court.

Rule 1 of Order 39 20 provides that temporary injunctions may be granted where it is proved:

“(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated
by any party to the suit, or wrongfully sold in execution, of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose o f his property with a view
to defrauding his creditors, or

(c) that the defendant threatens to dispossess the plaintiff or otherwise causes injury to the
plaintiff in relation to any property in dispute in the suit............”

The Supreme Court has held that courts also have an inherent power to issue a temporary
injunction in circumstances tiiat are not covered by the provisions of Order 39 when the court
is satisfied that the interests of justice so require.21

The grant or refusal of a temporary injunction is governed by three well established


principles:

(1) the existence of a prima facie case ( a showing on the facts that the plaintiff is very likely
to succeed in the suit) ;

(2) the likelihood of irreparable injury (an injury that can not be adequately compensated for
in damages) if the injunction is refused; and

(3) that the balance of convenience requires the issue of the injunction (a showing that the
inconvenience to the plaintiff if the temporary injunctions withheld exceeds the
inconvenience to the defendant if he or she is restrained).22

19
An application made between the commencement and end of a suit.
20
The Code of Civil Procedure, 1908.
21
Monohar Lai Chopra Vs Rai Baja Seth Hiralal, A.I.R. 1962 S.C. 527, 532.
22
Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India : Cases, Materials, and Statutes,
(2001), p. 90.

Page | 5
Perpetual injunctions are regulated by Sections 37 to 42 of the Specific Relief Act of 1963. A
perpetual injunction permanently restrains the defendant from doing the act complained of. It
is granted at a court’s discretion after judging the merits of the suit. A perpetual injunction is
intended to protect the plaintiff indefinitely (so that he or she need not resort to successive
actions in respect of every infringement), assuming that the circumstances of the case remain
essentially unchanged.

A court may permanently restrain the defendant where damages do not provide adequate
relief or where the injunction would prevent a multiplicity of proceedings. Thus, where
hazardous dust from a brick grinding machine polluted the air of a neighbouring medical
practitioner’s consulting room, the polluter was permanently restrained form operating the
machine,23 a court may grant an injunction even though the anticipated damage may not be
very serious, as long as, the damage is continuous or frequent. The ‘balance of convenience’
test also applies to the award of a permanent injunction. The court must be satisfied that the
damage that the defendant would suffer by the grant of the injunction is outweighed by the
damage that the plaintiff would suffer if the injunction was refused. Finally, the court will
consider the injunction’s impact on third parties, for example, when the granting of an
injunction would throw a large number of people out of work.

23
Ram Baj Singh Vs Babutat, A.l.R. 1982 ALL 285.

Page | 6
Nuisance:
The deepest doctrinal roots of ‘modern environmental law’ are found in the common law
concept of nuisance.24 A well known writer says that the substantive law for the protection of
the citizen’s environment is basically that of common law relating to nuisance,25

Nuisance as a tort means an unlawful interference with a person’s use or enjoyment of land.
Acts interfering with the comfort, health or safety are the examples of it. The interference
may be by any way, namely, noise, vibrations, heat, smoke, smell, fumes, water, gas,
electricity, excavations or disease producing germs.26 A plaintiff must, therefore, prove some
injury to his enjoyment of property and his own interest in that property. An occupier of the
property can sue for nuisance.27

Ordinarily, a nuisance means anything that annoys, hurts or offends; but for an interference to
be an actionable nuisance, the conduct of the defendant must be reasonable. Further, a
nuisance must not be momentary, but must continue for sometime. A single, short
inconvenience is not actionable. A nuisance would include offensive smells, noise, air
pollution and water pollution.28

In common law, a person can sue for nuisance when an act endangers his life, health,
property or comfort or when such an act obstructs him in the enjoyment of the rights common
to all people. ‘Environmental pollution’ in many instances is a question of ‘public nuisance’
materially affecting the reasonable comfort and convenience of life of a class of people.29

The law of nuisance, as it exists today, covers water and air pollution and provides some
remedy against the hazards of pollution.30 This is mainly because law of nuisance affords a
right to every person to have wholesome air and water. In modem parlance, nuisance is that
branch of law which is most closely connected with ‘protection of the environment’.31

24
V.K. Bcena Kumari, 'Environmental Pollution and Common Law Remedies' , in P. Leelakrishnan (Lditor), Law
and Environment, (1992), p. 103.
25
Ibid.
26
R.K. Bangia, Law of Torts, (1991), p. 200.
27
Supra n. 72 at p. 91.
28
Ibid.
29
Mahesh Malhur, Legal Control of Environmental Pollution : Jurisprudence and Laws Applicable to
Environmental Violation and Prevention,(1998), p. 154.
30
R.N.D. Hamilton, Private Recourse for Envimnmental Harm, (1978), p. 19, as cited in Mahesh Mathur, Ibid.
31
Teny Weir, A Case Book on Tort, Fourth Edition, Chapter 10, as cited in Mahesh Mathur, Ibid.

Page | 7
There are two kinds of nuisance - public and private. A public nuisance injures, annoys or
interferes with the quality of life of a class of persons who come within its neighbourhood. It
is an unreasonable interference with a general right of the public. It is both a tort and a crime.

The remedies for a public nuisance are:

(1) a criminal prosecution for the offence of causing a public nuisance ; 32

(2) a criminal proceeding before a magistrate for removing a public nuisance;33

(3) a civil action by the Advocate General or by two or more members of the public with
permission of the court, for a declaration, an injunction, or both.34

A private nuisance is a substantial and unreasonable interference with the use and enjoyment
of land. Reasonableness of the defendant’s conduct is the central question in nuisance cases.
To determine ‘reasonableness’, courts will be guided by the ordinary standard of comfort
prevailing in the neighbourhood. Minor discomforts that are common\ in crowded cities will
not be viewed as a nuisance by the courts.35

An action for private nuisance may seek injunctive relief, as well as, damages. In cases of a
continuing cause of action, such as, pollution of a stream by factory wastes or smoke
emissions from a chimney, the proper course is to sue for an injunction.36 Repeated actions
for damages may be brought to recover the loss sustained up to the date of the court’s decree;
but future losses, which neither are contingent on the continuance of the wrong, are nor
usually awarded. Damages offer poor relief since the plaintiff would be compelled to bring
successive actions. Ordinarily, therefore, courts grant the plaintiff an injunction where a
nuisance exists or is threatened, unless he or she is guilty of improper conduct or delay.37

In Kuldip Singh Vs Subhash Chandra Jain,38 the plaintiff Subhash Chandra Jain, feared that
the baking oven and 12 foot chimney build by his neighbour would cause a nuisance when
the bakery commenced. The trial Court restrained the defendant since operation of the oven

32
Section 268 of the Indian Penal Code of 1860.
33
Sections 133-144 of the Code of Criminal Procedure of 1973.
34
Section 91 of the Code of Civil Procedure of 1908. In the absence of special damage this is the only available
civil remedy. A private action can be maintained against a public nuisance where the plaintiff has suffered
particular damage beyond that suffered by all the other persons affected by the nuisance.
35
Shyam Divan and Annin Roscncranz, Environmental Law and Policy in India : Cases, Materials, and Statutes,
(2001), p. 91.
36
Ibid.
37
Ibid.
38
2000 (2) SCALE 582.

Page | 8
‘would cause in emitting smell and generating heat and smoke which taken together would
amount to nuisance'. The Supreme Court drew a distinction between an existing nuisance and
a future nuisance:

“In case of a future nuisance, a mere possibility of injury will not provide the plaintiff with a
cause of action unless the threat be so certain or imminent that an injury actionable in law
will arise unless prevented by an injunction. The court may not require proof of absolute
certainty or a proof beyond reasonable doubt before it may interfere; but a strong case of
probability that the apprehended mischief will infect arise must be shown by the plaintiff. ”

In a remarkable conclusion, the Apex Court found that the plaintiff’s apprehension about a
smoking oven next door causing a nuisance was not justified by the pleadings or the evidence
and dismissed the suit.

In B. Venkatappa Vs B. Lovis, 39
the Andhra Pradesh High Court upheld the lower Court’s
mandatory injunction directing the defendant to close the holes in a chimney facing the
plaintiff’s property. The Court ensured enforcement of its order by authorizing the plaintiff to
seal the holes at the defendant’s cost, if the defendant failed to do so. The High Court stated
that the smoke and fumes that materially interfered with ordinary comfort were enough to
constitute an actionable nuisance and that actual injury to health need not be proved. The
Court also observed that the existence of other sources of discomfort in the neighbourhood
were no defence, provided that the source complained of materially added to the discomfort.
The Court rejected the defence that the plaintiff ‘came to the nuisance’ :

"The fact that the nuisance existed long before the complainant occupied his premises, does
not relive the offender unless he can show that as against the complainant he has acquired a
right to commit nuisance complained of'40The law of easement guarantees beneficial
enjoyment to the owner of a land, free from air, water or noise pollution, without disturbing
the natural environment.41 This law enables an aggrieved individual to challenge any act of
pollution42 by moving a court under the Code of Civil Procedure,43 In all cases where

39
A.I.R. 1986 A.P. 239.
40
The ‘right to commit nuisance complained of’ refers to a prescriptive right to emit smoke acquired under
Section 15 of the Indian Easement Act of 1882, or a right acquired by the authority of a statute. A right to
cause a public nuisance, however, can not be obtained by prescription.
41
The Indian Easement Act, 1882, Section 7, Illustrations (b) - (!) and (h).
42
Guhiram Vs Udaychandra, A.I.R. 1963 Pat 455 ; Kailash Chand Vs Smt. Gudi, A.I.R. 1990 H.P. 17.
43
Section 9 of the Code of Civil Procedure of 1908. This provision empowering the courts to try suits of civil
nature reads : ‘ The court shall have jurisdiction to try all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred.'

Page | 9
environmental assaults amount to private nuisance, this provision can be invoked. The court
can give different kinds of remedies.44

The common defences in pollution cases are:

(1) the right obtained by prescription to pollute;

(2) estoppels;

(3) comparative injury; and

(4) statutory authorization.

In deciding whether a particular act is or is not an actionable nuisance, the court must
consider the locality, the nature of the nuisance and other questions of similar nature.45

44
Relief in the form of damages, injunction, interim orders, declaration, decree.
45
P. Leelakrishnan (Editor), Law and Environment, (1992) p. 106.

Page | 10
Trespass:
Trespass is a theory closely related to nuisance and is occasionally invoked in environmental
cases.46 Nuisance should be distinguished from trespass.47 Trespass is:

(i) A direct physical interference;

(ii) With the plaintiff’s possession of land;

(iii) Through some materials or tangible object.

Both nuisance and trespass are similar in so far as in either case the plaintiff has to show his
possession of land. The two may even coincide, some kinds of nuisance being also continuing
trespasses.48 The points of distinction between the two are as follows:

If interference is direct, the wrong is trespass, if it is consequential; it amounts to nuisance.


Planting a tree on another’s land is trespass. But when a person plants a tree over his own
land and the roots or branches project into or over the land of another person that is nuisance.
To throw stones upon one’s neighbour’s premises is a wrong of trespass; to allow a stone
from a ruinous chimney to fall upon those premises is the wrong of nuisance.49

Trespass is another specific tort which can be made basis of a suit for preventing
‘environmental pollution’.50 Trespass requires an unwarrantable entry upon the land of
another, or any direct and immediate act of interference with the possession of land. To
constitute the wrong of trespass neither force, nor unlawful intention, nor actual damage, nor
breaking of any enclosure is necessary. Every invasion of private property is it ever so
minute, is a trespass. Moreover, trespass is actionable per se, i.e., damage need not be proved
to sustain the action. Thus, it is immaterial whether there has been any actual damage or
not.51

The only requirement to establish a trespass is that there must be an intentional unprivileged
physical entry by a person or object on land possessed by another. Here nominal damages are
awarded by the court, upon proof of technical trespass by a plaintiff. The plaintiff could get

46
Mahesh Mathur, Legal Control of Environmental Pollution : Jurisprudence and Laws Applicable to
Environmental Violation and Prevention,(1998), p. 181.
47
R.K. Bangia, Law of Torts, (1991), p. 200.
48
Ibid.
49
Ibid..
50
Mahesh Mathur, supra n. 96 at p. 159.
51
Ibid.

Page | 11
injunctive relief against a technical trespass.52 There are few cases which have been decided
on this theory of action.

In Arvidson Vs Reynolds Metals Company, 53 the Court observed that aluminium is produced
by the defendant plant in a manner that unavoidably caused fluorides to be discharged into
the atmosphere and recognized that fluorides of some of the types escaping from the plants, if
ingested in excessive quantities, are capable of causing damage to cattle. Nevertheless, the
Court found for the defendants on the ground that large scale production of aluminium is
essential to national defence.

54
In Fairview Farms, Incorporated, Vs Reynolds Metals Company, the Court held that air
borne liquids and solids deposited upon Fairview land constituted trespass and allowed
damages for six year period applying the statute of limitations. However, injunctive relief
was denied on the ground that pollution was not reasonably certain to be repeated and the
defendant had apparently done all it could to control the pollution.

In Martin Vs Reynolds Metals Company, 55 the defendant argued that mere setting of fluoride
deposits upon the plaintiff’s land was not sufficient to constitute to trespass. The Court
refusing the contention, defined trespass as ‘the invasion of land owner’s right to exclusive
possession, whether by visible or invisible substance. This departure from the traditional
definition of trespass would impose a heavy burden on industry.

In Renken Vs Harvey Aluminium Incorporated.56 the Court relied on Martin57 in concluding


that the emissions from Harvey Aluminium Company were trespasser.

Nevertheless, the trespass theory is inadequate to control air pollution.58 The difficulty in
identifying the correct source of air pollution in an area, the cost of-litigation and willingness
of the people to accept the status quo tend to discourage the filing of trespass suits.59

52
Ibid at p. 160. See also P. Leelakrishnan (Editor), Law and Environment, (1992), p. 108
53
125 F. Supp. 481 (W.D. Wash, 1954), affd, 236 F. 2d 224 (9th Cir. 1956), Cert, denied 352 U.S 968 (1957), as
cited in Mahesh Mathur, Legal Control of Environmental Pollution : Jurisprudence and Laws Applicable to
Environmental Violation and Prevention, (1998), p. 160.
54
176 F. Supp. 178 ( D. Ore. 1959), as cited in Mahesh Mathur, ibid.
55
135 F. Supp 379, as cited in Mahesh Mathur, ibid.
56
226 F. Supp. 169 (D. Ore. 1963), as cited in Mahesh Mathur, ibid.
57
Supra n. 105.
58
V.K. Beena Kumari, ‘Environmental Pollution and Common Law Remedies’ , in P. Leelakrishnan (Editor), Law
and Environment, (1992), p. 109.
59
Ibid.

Page | 12
Negligence:
Negligence is another specific fort on which a common law action for preventing
‘environmental pollution’ can be based.60 It is the failure to exercise that care which the
circumstances demand in any given situation. Where there is a duty to take care, reasonable
care must be taken to avoid acts or omissions which can be reasonably foreseen61 to be likely
to cause physical injury to persons or property. The degree of care required in a particular
case depends on the accompanying circumstances and may vary according to the amount of
risk to be encountered and to the magnitude of the prospective injury. Where there is no duty
to exercise care, negligence in the popular sense has no legal consequence.62

A common law action for negligence may be brought to prevent environmental pollution.63In
an action for negligence, the plaintiff must show that:

(1) The defendant was under a duty to take reasonable care to avoid the damage complained
of;

(2) There was breach of this duty; and

(3) The breach of duty caused the damage.

An act of negligence may also constitute a nuisance if it unlawfully interferes with the
enjoyment of another’s right in land. Similarly, it may also amount to a breach of the rule of
64
strict liability in Rylands Vs Fletcher, if the negligent act allows the escape of anything
dangerous which the defendant has brought on the land.

60
Ibid.
61
‘The reasonable man is presumed to be free both from over apprehension and from over confidence......”
per Lord Mac Millan in Galsgow Corporation Vs Muir, [1943J AC 448 (HL) at p. 457, as cited in V. K.
Beenakumari, ibid at p. 109.
62
Grant Vs Australian Knitting Mills Limited, j 1936) AC 85 (DC) at p. 103 ; Donoghue Vs Stevenson, [1932] AC
562 (HL) at p. 618, as cited in V. K. Beenakumari, ibid at p. 109.
63
Shyam Divan and Arm in Rosencranz, Environmental Law and Policy in India : Cases, Materials, and Statutes,
(2001), p. 100.
64
(1868) LR 3 HL 330.

Page | 13
The casual connection between the negligent act and the plaintiff’s injury is often the most
problematic link in pollution cases. Where the pollutant is highly toxic and its effect is
immediate, as with the methyl isocyanine that leaked from the Union Carbide Plant in
Bhopal,65 the connection is relatively straight forward. The casual link is more tenuous when
the effect of the injury remains latent over long periods of time and can eventually be
attributed to factors other than the pollutant, or to polluters other than the defendant. 66

The casual relation between negligence and the plaintiff’s injury must be shown by the
plaintiff in an action for damages based on negligence. When the plaintiff has proved to the
satisfaction of the jury the existence of facts which are claimed and outlined, then a prima
facie case of negligence is presented. It, there upon, becomes the duty of the defendant to
come forward with evidence to show that the act was not negligent.

The casual relation between the negligent act and the injury suffered is not particularly
onerous task when a deadly pollutant like carbon monoxide is discharged in the air
admittedly under the defendant’s exclusive control as in Greyhound Corporation Vs
Blakley,67 However, where one brings an action for Lung damage caused by fine dust
particles against a local cement plant or glass factory, the case gels extremely difficult from a
causation stand point.

68
In Suko Vs North Western Ice and Cold Storage Co., water lank maintained by the
defendant burst and dropped a large quantity of water upon the plaintiff’s adjoining land and
caused personal injury to the plaintiff. Here the Oregano Supreme Court did not adopt the
Ryland’s doctrine. 69
The Court adopted the pure and simple rule of negligence with the test
of ordinary due care and gave the plaintiff the benefit and evidentiary aid of the doctrine of

65
Union Carbide Corporation (U.S.A.) Vs Union of India, A.I.R. 1990 S.C. 273. Facts remain that on December,
3, 1984, just after the midnight about 40 tons of highly toxic Methyl Iso Cyanate (MIC) gas, which had been
manufactured and stored in the Union Carbide Corporation’s (UCC) Chemical Plant in Bhopal, allegedly
escaped in to the atmosphere killing nearly 4000 people and inflicting injuries on more than 2 Lakhs others.
The Supreme Court of India, secured a compromise between the Union of India and the UCC. Under this
settlement, the UCC agreed to pay 470 million IJ.S. Dollar in full as compensation. Professor Upcndra Baxi has
criticized the settlement as denial of human rights.
66
In numerous American suits brought against asbestos manufacturers by asbestos workers suffering from
lung cancer, several courts reduced the damage award on the theory that a plaintiffs habit of smoking
cigarettes had contributed, or could have contributed, to this condition. Some courts dismissed the suit
entirely when the plaintiff had been a cigarette smoker.
67
262 F 2d 401 (9th Cir. 1958), as cited in V. K. Becnakumari, supra n. 108 at p. 110.
68
166 Or. 557, 113 P 2d 209, as cited in V. K. Becnakumari, supra n. 108 at p. 110.
69
(1868) L.R.3H.L. 330.

Page | 14
res ipso coquito that the instrumentality which caused the injury was in the exclusive
possession and control of the defendant. 70

71
In Ure Vs United States, where the plaintiff was injured by over flow of water from the
irrigation canal maintained by the defendant, the Court observed that a very high degree of
danger calls for a very high degree of care. The dangers caused by environmental pollution
are often potential dangers difficult to evaluate.

Negligence constitutes an independent basis of tort’s liability. It is considered as a separate


tort. It means a conduct which creates a risk of causing damage, rather than a state of mind.
The House of Lords in Donoghue Vs Stevention72 treats ‘negligence, where there is a duty to
take care, as specific tort in itself and not simply as an element in some more complex
relationship or in some specialized breach of duty 73

70
V.K. Beena Kumari, ’Environmental Pollution and Common Law Remedies’ , in P. Leelakrishnan (Editor), Law
and Environment, (1992), p. 111.
71
D.C. Or 93F Supp 779, as cited in V. K. Becnakumari, supra n. 108 at p. 111.
72
(1932) A.C. 562.
73
Grant Vs Australian Knitting Mills, (1936) A.C. 85, at p. 103, per Lord Wright; Lochgeliy Iron etc. Co., Ltd. Vs
Me. Millan, (1934) A. C.l, 35; Nicholi Vs Ely Beet Sugar Factory Ltd., (1936) Ch. 343,351; ‘In strict legal analysis
negligence means more than heedless or careless conduct whether in omission or commission ; it properly
connotes the complex concept of duly, breach and damage thereby suffered by the person to whom the duty
was owing’ [Loehgelly Iron and Coal Co. Vs Me. Millan, (1934) A.C.I, at p. 25 per Lord Wright), as cited in R. K.
Bangia, Law of Torts, (1991), p. 248.

Page | 15
Strict Liability:
The doctrine of strict liability - liability without fault - is worth considering in relation to
cases arising from or connected with ‘environmental pollution’.74 The most important case on
the point is that of Rylands Vs Fletcher.75 It was held in this case that although the defendant
is not guilty of negligence, he would be liable. Blackburn,

J Laid down the principle in the following words:

"We think that the rule of law is, that the person who for his own purposes brings on his lands
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 primafacie answerable for all the damage which is the
natural consequence of its escape.’’76

Blackburn, J., further said:

“The general rule as above stated seems on principle just. The person whose grass or corn is
eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water
from his neighbour s reservoir, or whose cellar is invaded by the filth of his neighbour s
privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his
neighbour s alkali work is dandified without any fault of his own; and it seems but reasonable
and just that the neighbour, who has brought something on his property which was not
naturally there, harmless to other so long as it is confined to his own property, but which he
knows to be mischievous if it gets on his neighbour’s should, be obliged to make good the
damage which ensures if he does not succeed in confining it to his own property. But for his
act in bringing it there no mischief could have occurred, and it seems but just that he should
at his peril keep it there so that no mischief may accrue or answerable for the natural and
anticipated consequences. "77

In Rylands Vs Fletcher,78 Fletcher was working in a coal mine under a lease. On the
neighbouring land, Rylands desired to erect a reservoir for storing water and for this purpose,
he employed a competent independent contractor whose workmen, while excavating the soil,

74
Mahesh Mathur, Legal Control of Environmental Pollution : Jurisprudence and Laws Applicable to
Environmental Violation and Prevention,{1998), p. 190.
75
(1868) L.R. 3 H.L. 330, as cited in Mahesh Mathur, ibid.
76
.Flctchcr VsRylands, (1866) L.R. 1 Lx. 265. 279, as cited in Mahesh Mathur, ibid at p. 191.
77
Per Blackburn J., in Fletcher Vs Rylands, (1866) L.R.l Ex 265, 280 ; 4 II & C 263, 271, confirmed in LR 3 H.L.
330; Manindra Nath Vs Malhards, (1945) 49 CWN 827; 80 CLJ 90, as cited in Mahcsh Mathur, ibid at p. 191.
78
(1868) L.R. 3 H.L. 330.

Page | 16
discovered some disused shafts and passages communicating with old workings and the mine
in the adjoining land. The shafts and passages had been filed with loose earth and rubbish.
The contractor did not take the trouble to pack these shafts and passages with earth, so as to
bear the pressure of water in the reservoir, when filled, shortly after the construction of the
reservoir shafts gave way and burst downwards. The consequence was that the water flooded
the old passages and also the plaintiffs mine, so that the mine could not be worked. The
plaintiff sued for damages. No negligence on the part of the defendant was proved. The only
question was whether the defendant would be liable for the negligence of the independent
contractor who was admittedly a competent engineer. The Court held that the question of
negligence was quite immaterial. The dependent, in bringing water into the reservoir, was
bound to keep it there at this peril, and was, therefore, liable.

The rule in Rylands Vs Fletcher79 holds a person strictly liable when he brings or
accumulates on his land something likely to cause harm if it escapes, and damage arises as a
natural consequence of its escape. But ‘strict liability’ is subject to a number of exceptions
that considerably reduce the scope of its operation.80 Exceptions that have been recognized
are:

(1) an act of God (natural disasters, such as, an earthquake or flood);

(2) the act of third party (namely, sabotage);

(3) the plaintiff’s own fault;

(4) the plaintiff’s consult;

(5) the natural use of land by the defendant (i.e., strict liability applies to a no natural user of
land); and

(6) statutory authority.

79
Ibid.
80
Shyam Divan and Armin Roscncranz, Environmental Law and Policy in India : Cases, Materials, and Statutes,
(2001), p. 105.

Page | 17
Absolute Liability:
With the expansion of chemical based industries in India, increasing number of enterprises
store and use hazardous substances. These activities are not banned because they have great
social utility (namely, the manufacture of fertilizers and pesticides). Traditionally, the
doctrine of strict liability was considered adequate to regulate such hazardous enterprises.
The doctrine allows for the growth of hazardous industries, while ensuring that such
enterprises will bear the burden of the damage they cause when a hazardous substance
escapes. Shortly after the Bhopal gas leak tragedy of 1984, the traditional doctrine was
replaced by the rule of ‘absolute liability’, a standard stricter than strict liability. Absolute
liability was first articulated by the Supreme Court and has since been adopted by Parliament.

The genesis of absolute liability was the Shriram Gas Leak Case81 which was decided by the
Supreme Court in December, 1989. The case originated in a writ petition filed in the Supreme
Court by the environmentalist and lawyer, M.C. Mehta as public interest litigation. The
petition sought to close and relocate Shriram’s caustic-chlorine and sulphuric acid plants
which were located in a thickly populated part of Delhi. Shortly after M.C. Mehta filed this
petition, on 4, December, 1985, oleum leaked from Shriram’s sulphuric acid plant causing
widespread panic in the surrounding community.

Chief Justice Bhagwati, who presided over the Supreme Court Bench, was concerned for the
safety of Delhi’s citizens. Moreover, the Chief Justice saw in the Oleum leak a way of
influencing the pending and far more important Bhopal Gas Leak Case. In the first reported
order in Shriram, the Chief Justice observed that the principles and norms for determining the
liability of large enterprises engaged in the manufacture and sale of hazardous products were
'questions of the greatest importance particularly since, following upon the leakage of MIC
gas from the Union Carbide Plant in Bhopal, lawyers judges and jurists are considerably
exercised as to what controls, whether by way of relocation or by way of installation of
adequate safety devices, need to be imposed upon [hazardous industries], what is the extent
of liability of such corporations and what remedies can be devised for enforcing such liability
with a view to securing payment of damages to the person affected by such leakage of liquid
or gas. 82

81
M.C. Mehta Vs Union of India, A.I.R. 1987 S.C. 1086.
82
M.C. Mehta Vs Union of India. AJ.R. 19B7 S.C. 965.

Page | 18
Union Carbide hinted at a ‘sabotage theory’ to shield itself from the claims of the Bhopal
victims. It was suggested that a disgruntled employee working in the pesticide factory owned
by Carbide’s Indian subsidiary may have triggered the escape of the gas. Such a theory
afforded a defence under the rule of strict liability laid down in Ryiands Vs Fletcher.83 But
any faith Union Carbide may have reposed in the sabotage theory was soon shaken by Chief
Justice Bhagwati’s rejection of the Ryland’s rule in situations involving hazardous industries.
In his last judgement before retirement, Chief Justice Bhagwati spoke for the Court:

We are of the view that an enterprise which is engaged in a hazardous or inherently


dangerous industry which poses a potential threat to the health and safety o f the persons
working in the factory and residing in the surrounding areas owes an absolute and non-
delegable duty to the community to ensure that no harm results to anyone on account of
hazardous or inherently dangerous nature of the activity which it has undertaken... we would
therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous
activity and harm results to any one on account of an accident in the operation of such
hazardous or inherently dangerous activity resulting, for example, in the escape of toxic gas
the enterprise is strictly and absolutely liable to compensate all those who are affected by the
accident ‘and such liability is not subject to any of the exceptions which operate vis-a-vis the
tortious principle of strict liability under the ride in Rylands vs Fletcher.,84

The rule laid down in Rylands Vs Fletcher, is generally known as the ‘Rule of Strict
Liability’ because of the various exceptions to the applicability of this rule.85However, this
rule of strict liability is to be distinguished from the ‘Rule of Absolute Liability’ laid down by
the Supreme Court of India in Oleum Gas Leak Case.86 While formulating this rule in M.C.
Mehta Vs Union of India,87 the Supreme Court, itself, termed the liability recognized in this
case as ‘absolute liability’ and expressly stated that such liability will not be subject to such
exceptions as have been recognized under Rylands Vs Fletcher.88The Supreme Court took a
bold decision holding that it was not bound to follow the 19th century’s rule of strict liability
of English law, and it could evolve a rule suitable to the social and economic conditions

83
(1868) L.R. 3 H.L. 330.
84
M.C. Mehta Vs Union of India, A.l.R. 1987 S.C. 1099.
85
(i) Acjt of God; (ii) Act of third party (Sabotage); (iii) Consent of the plaintiff; (iv) Plaintiff’s own default; (v)
Statutory authority.
86
M.C. Mehta Vs Union of India, A.l.R. 1987 S.C. 1086.
87
A.l.R. 1987 S.C. 1086.
88
R.K. Bangia, Law of Torts, (1991), p. 345

Page | 19
prevailing in India.89 The Supreme Court evolved the ‘rule of absolute liability’ as part of
Indian law in preference to the rule of strict liability laid down in Rylands Vs Fletcher. It
expressly declared that this new rule was not subject to any of the exceptions under the rule
in Rylands Vs Fletcher.90

Thus, the ‘rule of strict liability’ as laid down in Rylands Vs Fletcher in England over a
century ago, which recognized non liability of the defendant if the leakage of the substance
was due to sabotage etc., was considered to be inapplicable in India.91The absolute liability
theory laid down by the Supreme Court in Oleum Gas Leak case was first applied by the
Madhya Pradesh High Court to support its award of interim compensation to the Bhopal
victims.92 In light of Oleum, Justice Seth of the High Court described the liability of the
enterprise to be ‘unquestionable’.

However, soon thereafter, the wisdom of the theory was questioned by Chief Justice
Ranganath Misra who presided over the proceedings before the Supreme Court for a review
of the Bhopal Case Settlement.93Chief Justice Misra, in his concurring judgement, observed
that the issue before the Shriram Court was whether the delinquent company came within the
ambit of ‘state’ under Article 12 of the Constitution so as to be subject of the discipline of
Article 21 and to proceedings under Article 32 of the Constitution. Thus, according to the
Chief Justice, what was said about the departure from the Rylands Vs Fletcher rule ‘was
essentially obiter’.94

Justice Venkatachaliah (speaking for Justice K.N. Singh, N.D. Ojha and himself) in the main
judgement in the Bhopal Review also cast doubt on the absolute liability standard. He
implicitly rejected the Madhya Pradesh High Court view that after the no exception standard
of Shriram, Carbide’s liability was ‘unquestionable’. In Justice Venkatachaliah’s words:

"At the same time, it is necessary to remind ourselves that in bestowing a second thought
whether the settlement is just, fair and adequate, we should not proceed on the premises that
the liability of the UCC has been firmly established. It is yet to be decided if the matter goes

89
Ibid.
90
Ibid.
91
Ibid in ‘Preface’, p. v.
92
Union Carbide Corporation Vs Union of India, Civil Revision No. 26 of 1988,4th April 1988. This judgement
was never implemented in view of the final settlement between the parties.
93
UnionCarbideCorporationVsUnionoflndia(BhopalReview),A.I.R.1992S.C.
248.
94
I b i d a t p 2 6 1 . Obiter Dictum a r c w o r d s o f a j u d g e m e n t u n e c e s a r y f o r t h e d e c i s i o n o f t
hecase.

Page | 20
to trial. Indeed, UCC has seriously contested the basis of its alleged liability...... Every effort
should be made to protect the victims from the prospects of a protracted, exhausting and
uncertain litigation. While we do not intend to comment on the merits of the claims and of the
defences, factual and legal, arising in the suit, it is fair to recognize that the suit involves
complex questions as to the basis of UCC s liability and assessment of the quantum of
compensation in a mass tort action. "95

In recognizing Carbide’s right to raise and urge defences the Court stepped back from the
‘without exception’ absolute liability principle declared in Shrirain.

Mean while in January, 1991, Parliament enacted the Public Liability Insurance Act, giving
statutory recognition to ‘no-fault’ liability in small measure. The victims of a hazardous
industrial accident were now entitled to compensation at prescribed levels, without proof of
negligence. The maximum compensation under the Act on a ‘no fault’ basis, however, is
limited to Rs, 25,000; although the right of victims, to claim larger damages is expressly
reserved. To safeguard the interest of victims, the law requires all hazardous enterprises to
obtain sufficient insurance cover.

The application of absolute liability was extended without limitation by the National
Environment Tribunal Act, of 1995, to all cases where death or injury to a person (other than
a workman) or damage to any property or the environment result from an accident involving
a hazardous substance. The ‘owner’ who is defined to mean a person, who owns or has
control over the handling of any hazardous substance at the time of the accident, is liable to
compensate the victims on a ‘no-fault’ basis. Applications for compensation may be made to
the Tribunal established under the Act. The heads under which compensation may be claimed
are set out in the schedule to the Act and in addition to the omnibus entry 'any other claim
arising out of or connected with any activity of handling hazardous substances ’, they include
death; injury; medical expenses, damage to private property; expenses incurred by
government authorities in providing relief and rehabilitation; loss or harm to animals, crops,
trees, and orchards; and loss of business or of employment. Although the law was enacted in
June, 1995, it was not mentioned in the judgment of the Supreme Court in the Indian Council
for Environ-legal Action Vs Union of India (Bichhri case).96

95
Ibid'atp.306.
96
A.I.R. 1996 S.C. 1446

Page | 21
In the Bichhri case, a Supreme Court Bench of two judges grappled with the seemingly
divergent views expressed by the live-judge Constitution Benches in the Shriram and Bhopal
Review Cases.

The ‘Polluter pays principle’ as interpreted by this Court (in Bichhri) means that the absolute
liability for harm to the environment extends not only to compensate the victims of pollution
but also the cost of restoring the environmental degradation.97

97
Ibid. Quoted with approval in Vellore Citizen's Welfare Forum Vs Union oflndia, A.I.R. 1996 S.C. 2715, 2721.
Sec also Salish Ch. Shastri, ‘ The Polluter Pays Principle and the Supreme Court of India' in Journal of the Indian
Law Institute, Vol. 42 No. 1, January - March, 2000, p. 109.

Page | 22
Conclusion and Suggestion:

Although much of the attention in environmental law focuses on statutory and regulatory
matters, the common law is the foundation for many of the concepts in these areas. Statutes
and regulations often adopt common law concepts or have been devised to remedy defects in
the common law system. But the common law rules are still effective tools for environmental
lawyers.

Page | 23
Bibliography:
Books

Websites

 http://connect.michbar.org/envlaw/reports/deskbook/chapter13#_Toc325550962
 https://en.wikipedia.org/wiki/Environmental_law
 Downloads\Documents\Common_Law_Environmental_Remedies_2.pdf

Page | 24

You might also like