UNIT IV

Remedies For Environment

Protection
Introduction…..
Was there any specific provision in COI initially????
42nd amendment introduced Art 48A and 51-A(g).
MC Mehta vs. UOI (1983) SC held : duty of the
Central Govt. to introduce compulsory teaching of
lessons at least 1 hour in a week in all educational
institutions.
The Bench of Justices PN Bhagwati and Ranganath
Mishra in “Rural Litigation and Entitlement Kendra,
Dehradun vs. State of Uttar Pradesh AIR 1987 SC
2187” introduced the concept of “Sustainable
Development”. An NGO named RLEK filed a case
against limestone quarrying in the valley in 1987.
The Supreme Court in “M.C. Mehta vs. Union of India
WP 860/1991” ordered the Cinema theatres all over the
country to exhibit two slides free of cost on environment
in each show. Their licenses will be cancelled if they fail
to do so. The Television network in the country will give
5 to 7 minutes to televise programmes on environment
apart from giving a regular weekly programme on
environment.

Environment has become a compulsory subject up to

12th standard from academic session 1992 and
University Grants Commission will also introduce this
subject in higher classes in different Universities.
Env. under Constitution of India
•Art 19 (1)(g): Freedom of trade and Env.
Protection
Case law: Sushila Saw Mill vs. St of Orissa
•Art 21: No person shall be deprived of his life and
personal liberty except according to the procedure
estb. by law.
•MC Mehta vs. UOI (1987)
•MC Mehta vs. UOI (1988)
•Vellore citizen’s welfare Assn. vs. UOI (1996)
•Indian Council for Enviro Legal Action vs. UOI
(1996)
•Subhash Kr. Vs. State of Bihar (1991)
• Vehicular pollution : MC Mehta vs. UOI, conversion of buses to CNG.

Passive smokers: Murli S. Deora vs UOI

Burden of proof: Vellore citizen’s case the court held that onus of proof is on the
actor/developer to prove that his act is environmentally benign.

Part IV A Art. 51A(g): duty of every citizen of India to protect & improve the natural
environment incl. forests, lakes, rivers and wild life & have compassion for living creature.

Art. 48A: protection & improvement of env. & safeguarding of forests and wildlife.
Art. 38(b): that the ownership and control of the material resources of the community are
so distributed as best to serve the common good;

The Supreme Court of India in “Sachidanand Pandey v. State of West Bengal AIR 1987
SC 1109” stated that the Court is bound to bear in mind the above said articles whenever a
case related to Environmental problem is brought to the Court.

The Apex Court in “Damodar Rao v. S.O. Municipal Corporation AIR 1987 AP 171” held
that the environmental pollution and spoliation which is slowly poisoning and polluting
the atmosphere should also be regarded as amounting to violation of Article 21 of the
Indian Constitution.
The Bench of Justices Kuldip Singh and Sagir Ahmed held that the
Government violated the Doctrine of Public Trust in “M.C. Mehta
vs. Kamal Nath and Ors. (1996)”. The Himachal Pradesh State
Government had leased out a protected forest area on the bank of
river Beas to motels, for commercial purposes.

In 1996, the Supreme Court passed a judgment that would hold the
State more responsible for maintaining natural resources.

The Right to Pollution Free Environment was declared to be a part

of Right to Life under Article 21 of the Constitution of India in the
case of “Subhash Kumar vs. State of Bihar and Ors. (1991)”. Right
to Life is a Fundamental Right which includes the Right of
enjoyment of pollution free water and air for full enjoyment of life.
Judicial Activism
Judiciary: guardian of constitution.
Not expected to sit as a mute spectator and
close their eyes and be uncaring towards the
problem being faced by the people.
Bhavani River vs. Sakthi Sugars ltd.:
discharge of objectionable effluents from
distillery.
T. Damodar Rao vs. The special Officer,
Municipal Corporation Hyd.: state organs
include courts.
In India, judicial activism and increase in environmental- tort litigation started
with the catastrophe in Bhopal gas leak accident in which, due to the leak of
poisonous MIC (Methyl Isocyanate) gas, millions of people suffered from a
health problem and over 2,500 people died with the immediate poisonous
effect of the gas. With such massive harm to the environment and human life,
the doctrine of absolute liability began to evolve in India and finally evolved
in the MC Mehta case.

Bhopal tragedy was an eye-opening accident for people with different

backgrounds including state and central governments, media persons,
litigators, social activists and even industrial managements also. After the
tragic accident, a new feature was introduced in the Indian judicial system
when people started linking tort with the environment and there was a growth
in the concept of exemplary damages (heavier amount).

The new doctrine of absolute liability which developed after Bhopal Gas
Tragedy is different from the English concept of strict liability that comes into
effect with certain exceptions and defence such as plaintiff’s consent and his
own fault or act of God etc. Whereas, there are no defences available to the
defendant in cases relating to absolute liability.
Fully developed in MC Mehta v. Union Of India[2], absolute liability can be represented
in the form of an equation as:

Absolute liability = Strict liability- exceptions/defences

In MC Mehta, there was a leak of poisonous oleum gas (H2O7S2) from Shriram
food and fertilizers Ltd situated in Delhi. A new series of PIL initiated by Mahesh
Chandra Mehta, a public interest attorney started. The court could have ordered to
file a suit in the lower courts and ask for damages and compensation. But instead
of doing so, it came up with a concrete doctrine of absolute liability so that the
industrializing Indian economy may be able to deal with new challenges coming
from harmful industries.

The court also gave Deep Pocket Theory of Compensation and Justice P N

Bhagwati (later CJI) observed, “larger the enterprise or industry will be, larger
will be the amount of compensation that will be paid if there is an inherently
hazardous or dangerous activity is carried out” and a very wide interpretation of
Art. 32 was formulated with the introduction of new rights and remedies.
The MC Mehta case opened new possibilities in tortious environment litigation
and a new technique of issuing a direction under Art. 32 was invoked.
Consumer Education and Research Centre (CERC) v. Union of India
[3]– Although the principle of absolute liability was not revisited but the court
introduced new liabilities and stated, “the compensation given in case of
damage is not limited to the workers with visible symptoms of the disease
during the course of their employment but extends to those workers also who
suffer from any disease after their retirement”. The court also showed the sign
that in case of a violation of fundamental rights, directions under Art. 32 are not
limited to the State but can be extended to other persons and company acting
under any statutory power or license.

Indian Council for Enviro-legal action v. Union of India[4]– In this case

upholding the judgement in MC Mehta, the court observed “the law needs to
accommodate itself with the changing needs of the society especially in a
country like India where economic and social transformation is a challenge due
to rapid industrialization” and applied the polluter-pays’ principle. The court
also observed that the newly developed principles of tortious liability are
effective in PIL concerning environmental harm. The court stating the rationale
of MC Mehta asked the government to ensure the remedy for the victims and
directed the government to take necessary steps by levying a cost on the
defendants if they fail to do so.
Public Interest Litigation
Violation of FR- invoke Art. 32
Locus Standi realxed
Krishna Iyer: PIL is present constitutional
jurisprudence.
PIL before HC u/a 226 and SC u/a 32
Abuse of PIL: personal gain, private
profit, political motivation etc.
Right To Know….!!
St of UP vs raj Narain: Right to free
speech and expression (Art 19[1][a]) &
Art.21
Bombay Environmental Action Group vs.
Pune Cantonment Board.
Cr.P.C and Environment
Sec. 133: conditional order for removal of
public nuisance: DM/ SDM/Exe. Magistrate
Tejmal Puranchand Bured vs. St. of Mah.:
a. Public nuisance
b. mag. can act on info received from any source
c. Bound to take evidence
d. Ex-parte proceedings
e. Speaking orders
f. Remedy sought to be urgently
In the case of Govind Singh v. Shanti
Sarup (1978), the word nuisance was
defined in very liberal terms and it
includes the disposal of substances,
the construction of structures, the
conduct of occupation, and trade, and
confinement or disposal of any
dangerous animal. 
 Suhelkhan Khudayar Khan v. State of Maharashtra (2003
), these followings conditions have to be satisfied for
providing a sanction under this section:
There should be a public nuisance i.e. the number of
persons injuriously affected is so considerable (there
should be danger or inconvenience or it is about to be
caused).
It should not be a private dispute between the different
members of the public and if it is then the adequate forum
is the civil court.
It should be the case of imminent danger to the public
interest.
M.C. Mehta and Anr. Etc vs. Union Of India and Ors. Etc 1986 SCR (1)
312” discusses the concept of Public Liability. This case is also known as Oleum
Leakage Case. It is a landmark judgment in which the principle of Absolute
Liability was laid down by the Supreme Court of India. The Court held that the
permission for carrying out any hazardous industry very close to the human
habitation could not be given and the industry was relocated.

The instant case evolved the “Deep Pocket Principle”. This judgment guided the
Parliament to add a new chapter to the Factory Act, 1948. The Public Liability
Act was passed and the policy for the Abatement of Pollution Control was also
established.

When the Directive Principles of State Policy has clear statutory expressions
then the Court will not allow Municipal Government to make fun of the Statutes
by sitting idly. It was decided by the Supreme Court in the “Municipal
Corporation, Ratlam vs. Vardhichand AIR 1980 SC 1622”. The plea of lack of
fund will be poor alibi when people in misery cry for justice. The office in
charge and even the elected representatives will have to face a penalty if they
violate the constitutional and other statutory directives.
IPC and ENVIRONMENT
Chapter 14 (Sec 268-291)
Sec 268: Nuisance
Nuisance: any inconvenience that interferes with
ordinary physical comfort of human experience.
Public nuisance & private nuisance
Sec. 269: negligent act likely to spread infection of
disease
Sec. 270: Malignant act likely to spread infection of
disease.
Sec 272: Adulteration of food or drinks intended for
sale
Sec. 273: Sale of noxious food or drink.
Sec. 274: Adulteration of drugs.
Sec. 275: Sale of adulterated drugs
Sec 277: fouling of water of public spring or reservoir.
Sec 278: making atmosphere noxious to health
sec. 284: negligent conduct with respect to poisonous substance.
Sec 285: negligent conduct with respect to fire/ combustible matter
sec. 289: negligent conduct with respect to animals.
Sec. 290: public nuisance not otherwise provided.
sec. 291: repeat offenders- upto 6 months imprisonment/fine/ both
 CPC & ENVIRONMENT

Section 91 of CPC states that

(1) In the case of a public nuisance the Advocate General or
two or more persons having obtained the consent in
writing of the Advocate General, may institute a suit,
though no special damage has been caused, for a
declaration and injunction or for such other relief as may
be appropriate to the circumstances of the case.
(2) Nothing in this section shall be deemed to limit or
otherwise affect any right of suit which may exist
independently of its provisions.
Tort Law and ENVIRONMENT
What is TORT?
Salmond: a civil wrong; different from breach
of contract; remedy is unliquidated damages.
Dr. Winfield: breach of duty fixed by law;
duty towards persons; remedy via
unliquidated damages.
Tort law is based upon the principles “sic
uteve two ut alininum non lex das” means so
use your property as not harm others. 
ENVIRONMENT LAW vs.
ENVIRONMENTAL TORTS
environmental law and environmental torts is that
regulation is perpetuated to protect general public
health, while torts are brought in order to rectify
damages caused to individual human beings.
The difference between environmental law and
environmental torts is in environmental law with
respect to hazardous waste is that the burden of
proof as to whether something caused something
else is shifted. In torts, the plaintiff has the burden
of showing that the action caused damages.
 NEGLIGENCE

ENVIRONMEN
T & STRICT
NUISANCE
TORT
LIABILITY

TRESPASS
NEGLIGENCE
Breach of a legal duty to take care,
resulting in damage to the plaintiff.
Ingredients:
A. legal duty to take reasonable care
B. breach of legal duty
C. breach caused the damage
 CASE LAWS
 Donoghue vs Stevenson
In this case, Mrs. Donghue went to a cafe with a friend. The friend brought her a bottle of
ginger beer and ice cream. The ginger beer came in a dark bottle, and the contents were
not visible from the outside. Donghue drank some of the contents and her friend lifted the
bottle top pour the remainder of the ginger beer into the tumbler. The remains of a snail in
a state of decomposition dropped out of the bottle into the tumbler. As a result of the
remain, Donoghue suffered from nervous shock and gastroenteritis. Donoghue attempted
to claim against the manufacturer of the ginger beer (Stevenson) claimed that he owed her
a duty of care.
Court held the case in favor of Donoghue, a duty can be owed to the ultimate consumer. The
reasoning given as per Lord Atkin is The degree of care varies from case to case.
Generally, the causal relationship must be shown by the plaintiff between the negligence of
the defendant and the injury to the plaintiff.
 Nichols v. Marsland
In this case, The defendant had a series of artificial lakes on his land in the construction or
maintenance of which there had been no negligence. Owing to exceptionally heavy rain,
some of the reservoirs burst and carried away four country bridges. It was held that the
defendant was not liable as the water escaped by the act of God
Naresh Dutt Tyagi vs State of UP 
In this case, Chemical pesticides were stored in go down in a residential area. fumes
emanating from the pesticides leaked to the contiguous property through ventilators
which resulted in the death of 3 children and an infant in the womb of the mother. It
was held that it was a clear case of negligence

Mukesh Textile Mills vs Subramanya Sastri

In this case, the court applied common law action for negligence to prevent activity
causing environmental pollution. The facts of this case were that the appellant had a
sugar factory and used to store molasses, a by-product in the manufacturing of
sugar, in tanks which were close to the respondent’s land and separated by a water
channel. One day, one of the tanks collapsed. It emptied into the water channel and
ultimately spoiled the paddy fields of the respondent causing damage to the raised
crop. The court held the appellant liable on two grounds. Firstly, the appellant who
had stored a large quantity of molasses in tanks had the duty to take reasonable care
in the matter of maintenance. If the duty to take care was not properly performed,
then it amounted to negligence on the part of the appellant. The court further pointed
out that the appellant could reasonably foresee the damage, which was likely to be
caused if there was a breach in the tank. Secondly, liability arises whenever the land
is put to the non-natural use. Thus, the court held that the appellant was liable for the
consequences of the escape of the fluid its tank.
 B. Venkatappa vs B. Lovis 
In this case, the Andhra Pradesh high court while upholding the lower court’s mandatory
injunction directing the defendant to close the holes in a chimney facing the plaintiff ‘s
property observed that the smoke and fumes that materially interfered with ordinary comfort
was enough to constitute an actionable nuisance and that actual injury to health need not be
proved. The fact that the nuisance existed long before the complainant occupied his
premises, does not relieve the offender unless he can show that as against the complainant he
had acquired a right to commit nuisance complained of

 Wu Siew Ying vs Gunung Tunggal Quarry and Construction SDN BHD 
In this case, the first the defendant operated a quarry on a limestone hill situated on land
adjacent to the plaintiff’s plant nursery. The second defendant was the registered owner of
the quarry which he had leased to the first defendant . on a day, following a severe
thunderstorm, a large slice of the hill collapsed. Limestone rock debris fell on to the
plaintiff’s land and virtually destroyed his nursery. The collapse occurred at a time when the
first defendant had shut down quarrying operations for the new year holidays. The plaintiff
filed an action against the defendants for negligence and nuisance. The plaintiff contended
that the collapse was due to the quarrying activities of the defendant . Having pursued the
evidence the apex court was of the view that though the 1st defendant had used a minimal
amount of explosive for blasting and adopted certain safety blasting method nevertheless had
neglected to ensure that the resultant strength of the ground was adequate to prevent the
collapse of the eastern duct of the hill and to take reasonable steps to remove hazards on the
hill when he was aware of them.
The blasting operation carried out by the 1st defendant had caused vibration and
though this is one of the causes for the rock fall it is a significant contribution to the
collapse of the eastern duct of the hill. On these grounds, the 1st defendant was
liable to the plaintiff for negligence

 Municipal Board, Jaunpur vs Brahm Kishore

In this case, the defendants ( Municipal Authorities ) had dug a ditch on a public
road for repairs. The plaintiff who was going on a cycle in the evening to his
quarters from the club did not see the ditch in the darkness, and fell into it and was
injured. The municipal authorities had not given any public notice about this, and
not provided light, danger signal, caution notice or barricade, etc. to prevent such
accidents. The court said that the fact that the cyclist did not have any light fixed in
front of the cycle need not make any difference because the light of the kerosene
lamp which is used by the cyclist generally could not still make the ditch visible.
The court held that the accident occurred due to the negligence of the defendants
( Municipal Authorities ) and therefore they were liable. It was their duty to give
proper notice and provide light to the passerby on the road which they did not
comply.
Ramdas And Sons vs Bhuwaneshwar Prasad Singh :

In this case, the defendants were contractors who had undertaken to

lay water pipeline and for that purpose, they made trenches in front
of a govt hospital. The trench was left open and it was not
barricaded nor red light was installed to give warning to the
passerby about its danger. At 8 pm in the night when the plaintiff
who was going to the hospital fell into the trench and got serious
injuries. The facts disclosed that the trench was in front of the main
gate of the hospital. The road to the hospital was a thoroughfare
wherefrom the people used to pass day and night. Moreover, there
was complete darkness on the road as blackout was being observed
those days on account of Indo Pakistan war. The plaintiff sued the
defendant for damages. It was held that the defendants were liable
as they failed to observe the due care of providing the fence around
the trench and also did not provide any red light there.
 NUISANCE
 It means anything which annoys, hurts or that which is offensive.
 Under the common law principle, the nuisance is concerned with unlawful
interference with the person’s right over whole of land or of some right over
or in connection with it. But for an interference to be an ‘actionable nuisance’
the conduct of the defendant must be unreasonable.
 Nuisance may be public or private in nature. Hence acts interfering with the
comfort, health or safety are covered under nuisance. The interference may be
due to smell, noise, fumes, gas, heat, smoke, germs, vibrations, etc. In the
private nuisance, the basis of an action under nuisance is unreasonable and
unnecessary inconvenience caused by the use of the defendant’s land.
 A public nuisance is an unreasonable interference with a right common to the
general public, otherwise an act or omission which materially affects the
reasonable comfort, convenience, health, safety and quality of life of a class
of persons. The activities include carrying of trades causing offensive smells,
intolerable noises, dust, vibrations, collection of filth that affects the health or
habitability in a locality.
 CASE LAWS
St. Helen Smelting Co. vs Tipping:
In this case, the fumes from the defendant’s manufacturing work damaged
plaintiff’s trees and shrubs. The Court held that such damages being an injury
to property gave rise to a cause of action. In the case of damage to property,
any sensible injury will be sufficient to support an action

Dilaware Ltd. vs Westminister City Council 

In this case, the respondent was the owner of a tree growing in the footpath of a
highway. The roots of the tree caused cracks in the neighboring building. The
transferee of the building, after the cracks were detected, was held entitled to
recover reasonable remedial expenditure in respect of the entire damage from
the continuing nuisance caused by the trees.
Ram Baj Singh vs Babu Lal 
In this case, A person built a brick grinding machine in front of the consulting
chamber of a medical practitioner. The machine was generating a lot of dust and
noise which polluted the atmosphere and entered the consulting chamber of the
medical practitioner and caused physical inconvenience to him and his patients.

The Allahabad High Court held that this amounts to the private nuisance which can
reasonably be said to cause injury, discomfort or annoyance to a person. Exposure
of unwilling persons to dangerous and disastrous levels of noise amounts to noise
pollution. It is also known as noise nuisance and thus it can be controlled under the
law of torts. No citizen can exercise his fundamental freedom under the
constitution in such a way that it creates a nuisance to others to become a health
hazard activity .

Free Legal Aid Cell vs Govt of NCT of Delhi 

In this case, the petition was filed on behalf of an association of public activists in
public interest. The main grievance in this petition was that as a result of display of
fireworks and use thereof during festivals and marriages, physical and mental
health hazard is suffered by adults as well as children. It was also submitted that
because of indiscriminate use of loudspeakers, noise pollution has become a
routine affair affecting mental as well as physical health of citizens and it causes a
The Delhi high court rightly observed that the effect of noise on the health is a
matter, which has yet not received full attention of our judiciary, which it
deserves. Pollution being wrongful contamination of the environment which
causes material injury to the right of an individual, noise can well be regarded as a
pollutant because it contaminates the environment , causes nuisance and effects
health of a person if it exceeds a reasonable limit

Lakshmipathy vs State
In this case, the petitioners were aggrieved by the location an operation of
industries and industrial enterprises in a residential area in alleged gross violation
of the provisions of the Karnataka Town And Country Planning Act, 1961. The
petitioners were questioning the industrial activity in a residential locality by
establishing and running factories, workshops, factory sheds, manufacture of
greases and lubricating oils by distillation process and also the production of
inflammable products by the respondents.
The Karnataka High Court directed such industries to be stopped and further held
that earmarked residential area should not be used for such industries. The court
also directed the authorities to remove all encroachments in public lands and roads
in the area in question and to implement the order of the court within sixty days
from the date of the receipt of the copy of the order. The petitioners were also held
entitled to costs Rs.3000/- from the respondents
Kuldeep Singh vs Subash Chandra Jain 
In this case, the plaintiff feared that the baking oven and 12 feet chimney built by
his neighbor would cause nuisance when the bakery commenced. 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 certainly but before the court may interfere, the plaintiff must show a
strong case of probability that the apprehended mischief will in fact arise.
The court concluded that the plaintiff’s apprehension about nuisance due to smoke
from the bakery to be commenced was not justified by the pleadings or the
evidence and accordingly the suit was dismissed .

Broadbent v. Imperial Gas Co. 

In this case, an injunction was granted to prevent a gas company from
manufacturing gas in such close proximity to the premises of the plaintiff, a market
gardener, and in such a manner as to injure his garden produce by the escape of
noxious matter.
Halsey v. Esso Petroleum Co. Ltd.
In this case, the defendant’s depot dealt with fuel oil in its light from
the chimneys projected from the boiler house, acid smuts containing
sulphate was emitted and was visible falling outside the plaintiff’s
house. There was proof that the smuts had damaged clothes hung out
to dry in the garden of the plaintiff’s house and also paintwork of the
plaintiff’s car which he kept on the highway outside the door of his
house.
The depot emanated a pungent and nauseating smell of oil which
went beyond a background smell and was more than would affect a
sensitive person but the plaintiff had not suffered any injury in
health from the smell.
During the night there was noise from the boilers which at its peak
caused window and doors in the plaintiff’s house to vibrate and
prevented the plaintiff’s sleeping. An action was brought by the
plaintiff for nuisance by acid smuts, smell and noise. The defendants
were held liable to the plaintiff in respect of emission of acid smuts,
noise or smell.
TRESPASS
It means an intentional invasion of the interests of the plaintiff over the property in
his exclusive possession. The invasion may be direct or through some tangible
object. Two things are necessary to prove for constituting the tort of trespass.
# Intentional interference
# Such interference must be direct rather than consequential.

It differs from the nuisance in that, trespass is actionable per se whereas nuisance
is actionable in the proof of damage. In the environment related problems tort of
trespass constitutes a deliberate placement of waste in such circumstances as it will
be carried to the land of plaintiff by natural forces. It may be gases or even
invisible fumes.

The primary remedies for these environmental torts are claiming for unliquidated
damages and injunction or both. Damages are compensation payable for the
commission of a tort. These damages may be nominal, substantial or exemplary.
Where it is not an appropriate remedy and the prevention of tortuous act is
essential, the remedy of an injunction with or without damages may be granted. 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. Injunctions are
of two kinds, temporary or perpetual.
CASE LAWS
 Sammons vs Gloversville 
In this case , a very polluted Cayadutta Creek flowed through Sampson
Sammons’ New York farm. Upstream, the city of Gloversville emptied its
sewers and drains into the creek, fouling its waters and depositing filth on its
beds and along its banks. So, too, did the city of Johnstown, along with several
tanneries. Mr. Sammons went to court to restrain Gloversville from further
polluting the creek or its banks. The trial court found that the city’s sewage
disposal practices amounted to a continuing trespass that substantially injured
Mr. Sammons’ property rights. It issued an injunction, to take effect after one
year, prohibiting Gloversville from fouling Mr. Sammons premises by
discharging its sewage into the creek. The court retained the right to extend the
injunction if it took longer than a year for the city to establish a different
sewage system or to obtain legislative relief. Both the Appellate Division and
the Court of Appeals affirmed the decision. As the trial judge explained, it was
uniform practice in New York to enjoin trespass, regardless of the public
necessity of the offending works or the great inconvenience that could result
from their restraint.
Friesen vs Forest Protection Ltd
In this case , Abram Friesen, a professor at the University of New Brunswick, lived with his
wife and four children on a farm in Island View, just west of Fredericton, New Brunswick. In
the evening Dr. and Mrs. Friesen were picking fiddleheads near a brook on their farm when
planes flew directly overhead, emitting a cloud of spray that descended on them, burning
their cheeks, causing their eyes to water, and making them cough.

The Friesens, organic farmers who shunned pesticides, were furious. They knew that as part
of New Brunswick’s spruce budworm control program, Forest Protection Limited was
spraying a pesticide formulation containing fenitrothion – a highly toxic organophosphate.
Just one week earlier, Dr. Friesen had asked the company not to spray his property.

During the following weeks Dr. and Mrs. Friesen experienced a variety of physical ailments,
which they attributed to fenitrothion poisoning. Their 12-year-old the son suffered a
protracted asthmatic attack, which the Friesens blamed on inhalation of drifting spray. The
spraying company, in contrast, called the boy’s attack a response to the emotional distress
suffered by his parents; similarly, it judged the adults’ symptoms psychosomatic. The
Friesens also found several hundred dead bees near their hives, and lost two cows, a pony,
and two sheep; no evidence, however, linked these deaths to the spraying.
The Friesens sued Forest Protection Limited for damages under trespass and nuisance. The
court held that it is unlawful to spray pesticides onto another’s land and awarded them
$1,328.20 plus taxed costs