ENVIRONMENTAL POLLUTION AS A TORT- ALL YOU NEED TO KNOW
Pollution is a matter of global concern. The causes of environmental pollution can be traced back to human actions such as littering and contamination of the environment by companies dealing with hazardous substances.The actions of those causing pollution affect an individual directly or indirectly. The acts of a person should not interfere with the rights of others. To ensure that individuals who have suffered due to environmental pollution get justice, compensation is provided under tort law. This article explores the use of tort law as a remedy seeking instrument.
Environmental Torts
Tort law focuses on bad outcomes affecting persons (both human beings and corporations) and property. The term ‘property’ does not refer to the things, but to things that are subject to a legal regime. The earth’s atmosphere, for instance, is not subject to any legal property regime and so is not within the scope of tort law. Tort law comes onto the scene when something has gone wrong. So in cases of environment, the tort law will play a role when there is environmental damage. It is much more concerned with cure rather than prevention. It is concerned primarily with reparation and not punishment. It is one of the remedy for environmental pollution
Environmental pollution under tort law:-
India has been a plethora of legislation covering various aspects of the environment to ensure its conservation. However, due to loopholes in the laws or perhaps, the slack of the authorities imposing the laws, this legislation has merely remained a compendium of powerless phrases that have lost their power during the course of time. The SC has interpreted the right to life and personal liberty as under Article 21 to mean a right to have pollution free environment. However, Indian Environmental Law has seen considerable development in the last two decades, with the constitutional courts laying down the basic principles on which the environmental justice system stands. The law of torts in India, which remained unmodified, followed the English law in almost all aspects in is field. It is notable that common law, originally introduced into India by the British, continues to apply here by virtue of Article 372(1)6 of the Indian Constitution unless it has been modified or changed by peculiar conditions that prevailed in India required this. Environmental pollution can be a part of tort law under the following categories in India.The remedies of modern environmental torts have their roots in these common law principles of nuisance, negligence, strict liability and trespass and other remedies for tort.
Nuisance:
It means anything which annoys hurts or that which is offensive. 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 in unreasonable and unnecessary inconvenience caused by the use of defendant’s land. The tort law of nuisance as a remedy with reference to environmental damages suffers from several limitations. First reasonableness of defendant’s conduct is a question mark or otherwise unreasonableness on the defendant’s conduct is very difficult to prove and mostly weighed against the gravity of the harm to the plaintiff. In pollution related cases it is very difficult for the plaintiff to establish casual link between the pollutant and the injury as the subject required more of technical evidence. Again material harm attributable to the unreasonable conduct of the defendant is very difficult to prove especially in the pollution related cases.
Negligence:
There are situations when an individual/company fails to take reasonable care. Due to a lack of exercise of due obligation and failure to fulfill their duty to take care, the damage is caused to another party. This act/omission to not take reasonable care is called negligence.
Care is an abstract term therefore, the question is: how do we know if sufficient care was taken or not?
- To determine whether reasonable care was taken or not it is important to know the degree of relation between the act of negligence and the accident.
- It is important to know that if the party was truly not negligent and had exercised care, then the said incident would not have taken place. Thus, reasonable care has to be determined by looking at the degree of damage caused.
- Reasonable care can only be exercised if the risk is known and the harmful events could have been foreseen. Thus, reasonable care will be measured with respect to the risk taken and the degree of harm caused to the victims.
Trespass:
It means an intentional invasion of the interests of the plaintiff over property in his exclusive possession. Invasion may be direct or through some tangible object. Two things are necessary to prove for constituting the tort of trespass. In the environment related problems tort of trespass.
1.Intentional interference
2.Such interference must be direct rather than consequential. In the environment related problems tort of trespass constitute a deliberate placement of waste in such circumstances as it will be related cases the tort of trespass in very rarely invoked due to the fact
3.Difficult t indentify the source
4.High cost of litigation
Strict Liability:
The person who, for his own purpose, brings on his land 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. The liability under this rule is strict and it is not the defense that the thongs escape without fault on the part of the defendant and particularly this aspect of the doctrine has significant relevance in the matters related to environmental pollution. It is related to variety of things like fire, gas, explosions, electricity, oil, noxious, fumes, colliery spoil, poisonous vegetation etc. This rule is equally applies to the injuries caused to person and property.