NATIONAL LAW INSITUTE UNIVIERSITY, BHOPAL

LAW OF TORTS- SECOND TRIMESTER PROJECT

TOPIC:- TOXIC TORTS AND PROTECTION OF

ENVIRONMENT:POSTION IN INDIA

SUBMITTED TO: - SUBMITTED BY:-

Prof. (Dr.) Rajiv Khare Siddharth
Vishwakarma
2018BALLB28

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 TABLE OF CONTENTS
CERTIFICATE........................................................................................................................3

ACKNOWLEDGMENT..........................................................................................................4

INTRODUCTION....................................................................................................................5

HISTORY OF TOXIC TORTS..............................................................................................6

TOXIC TORTS CLAIM.........................................................................................................7

CAUSATION AND TOXIC TORT CLAIMS.......................................................................8

WHO TO SUE IN TOXIC TORT CASES?..........................................................................8

LEGAL ENACTMENTS RELATED TO TOXIC TORTS.................................................9

ENVIRONMENT LAW IN INDIA........................................................................................9

CASE LAW REALTED TO ENVIRONMENTAL LAW IN INDIA...............................12

REVIEW OF LITERATURE...............................................................................................16

CONCLUSION..................................................................................................................................17

BIBLIOGRAPHY..............................................................................................................................18

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 CERTIFICATE

This is to certify that the Project titled “TOXIC TORTS AND PROTECTION OF
ENVIRONMENT: POSTION IN INDIA” has been prepared and submitted by Siddharth
Vishwakarma who is currently pursuing B.A.L.L.B(Hons.) from National Law Institute
University, Bhopal in fulfilment of Law of Torts-2. It is also certified that this is his original
work and this work has not been submitted to any other university or published in any
journal.

I understand that I myself could be held responsible and accountable for plagiarism, if any,
detected later on.

Date:

Signature of the Student :…………………………….

Signature of the Supervisor :…………………………….

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 ACKNOWLEDGMENT

I would like to take this opportunity to acknowledge Dr. Rajiv Kumar Khare who gave us this
chance to accomplish this project work on “TOXIC TORTS AND PROTECTION OF
ENVIRONMENT: POSTION IN INDIA”

I would also like to express my gratitude to our director Professor Vijay Kumar who has
always encouraged us and supported us in our endeavour by providing us world class
facilities like library and wi-fi connection,

Also, the assistance given by the library staff is acknowledged. Lastly, I would also like to
thank my parents and batch mates without whose help this project could not have been
accomplished.

Thanking You.

Siddharth Vishwakarma

2010 B.A.,LL.B.(Hons) 28

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 INTRODUCTION

A tort is an act or omission that gives rise to injury or harm to another and amounts to a
civil wrong for which courts impose liability. In the context of torts, "injury" describes the
invasion of any legal right, whereas "harm" describes a loss or detriment in fact that an
individual suffers.1

But due to industrialisation harmful pollutants started to get excreted in the environment, of
some are toxic in nature. Thus, after some time these harmful pollutants started to have effect
on the nearby surrounding and gave rise to term know as Toxic Tort.

The term ‘Toxic Tort’ is a product – albeit an undesirable one of modern industrialisation, in
broad terms, it encompasses any wrongful injury resulting from exposure to one or more
hazardous substances. As a consequence of the proliferation of chemicals in the workplace
and the general environment, the incidence of toxic tort claims has multiplied rapidly in
recent years.

The legal theory of recovery and defences involved in toxic tort cases generally mirror
product liability law theories of liability and defences for warranty, strict liability and
negligence. These cases can arise in wide variety of contexts and are especially significant
because such claims often involve large, or potentially large number of injured persons.
Toxic tort cases frequently give rise to particular types of evidentiary issues.

Because of all these, various kinds of laws are developed to protect the environment against
these harmful pollutants know as Environmental law.

As per the definition of environment in Environment Protection Act 1986, “environment

includes water, air and land and the inter-relationship which exists among and between water,
air and human beings, other living creatures, plants, micro- organism and property.”2

This act beside defining, lays down various provision. Power, duties and function of central
government which we will discuss further in this project.

1
https://www.law.cornell.edu/wex/tort
2
http://envfor.nic.in/legis/env/env1.html

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 HISTORY OF TOXIC TORTS

A toxic tort is a legal claim for harm caused by exposure to a dangerous substance -- such as
a pharmaceutical drug, pesticide, or chemical. While advances in technology, manufacturing,
and medicine have introduced thousands of new products into our daily lives, some of those
products -- and the substances they contain -- can cause serious illnesses in humans.
Sometimes chemicals which are thought to be safe turn out to be otherwise. Other times,
substances known to be dangerous accidentally leak into the air or groundwater. Along with
these new chemicals and drugs have come lawsuits -- called toxic tort litigation -- brought on
behalf of individuals or groups of people who have been exposed to and harmed by
dangerous substances.

During British Rule courts in India were enjoined by Acts of Parliament in the UK and by
Indian enactments to act according to justice, equity and good conscience if there was no
specific rule of enacted law applicable to the dispute in as suit. In regard to suits for damages
for torts, courts followed the English common law insofar as it was consonant with justice,
equity and good conscience. They departed from it when any of its rule appeared
unreasonable and unsuitable to Indian conditions. An English statue dealing with torts law is
not by its own force applicable to India but may be followed here unless it is not accepted for
the reason just mentioned.

In India the term tort has been in existence since pre-independence era. The Sanskrit word
Jimha, which means crooked was used in ancient Hindu law text in the sense of ‘tortious of
fraudulent conduct’ However, under the Hindu law and the Muslim law, tort had a much
narrower conception than the tort of the English law. The punishment of crimes in these
systems occupied a more prominent place than compensation for wrongs. The law of torts in
India presently, is mainly the English law of torts which itself is based on the principles of the
common law of England. However, the Indian courts before applying any rule of English law
can see whether it is suited to the Indian society and circumstances. The application of the
English law in India has therefore been a selective application.3

In this context, in M.C. Mehta v. Union of India, Justice Bhagwati observed- 

“We have to evolve new principles and lay down new norms which will adequately deal with
3
http://www.legalserviceindia.com/article/l129-Torts-In-India.html

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new problems which arise in a highly industrialized economy. We cannot allow our judicial
thinking to be constructed by reference to the law as it prevails in England or for the matter of
that in any foreign country. We are certainly prepared to receive light from whatever source it
comes but we have to build our own jurisprudence.”

TOXIC TORTS CLAIM

In Toxic Torts the person who sues assert that disclosure to some dangerous substances
caused an injury or illness. These claims are generally fought on behalf of large no. of
peoples who are exposed to and hurt by dangerous substances. This is known as Class
Action. It mainly arises in following context:

 Occupational exposure- when people in there working place are exposed to toxicant,
high level for a short period of time or, low level over an extended time.
 Pharmaceutical drugs- when pharmaceutical drugs cause side effect.

In this plaintiff need to prove that a toxic substance was dangerous, and the plaintiff was
exposed to that substance. He/she can claim under tort of negligence, strict liability or fraud.
The plaintiff must show

 That the substance was dangerous

 The plaintiff was exposed to it
 The substance caused harm to the plaintiff

Negligent claims may be based on negligent conduct or failure to warn about the harmful
effect of the chemical in use. For example, a refinery that fails to enact appropriate
procedures to prevent chemicals from flowing into the groundwater can be held liable for
being negligent. Similarly, a drug manufacturer that fails to give adequate warnings may
be found negligent.

When strict liability applies, it tends to be easier to prove than negligence. In a strict
liability case, the plaintiff need not show that the defendant’s actions fell below a
particular standard but must only prove a defect, an injury to the plaintiff, and that the
injury was caused by the product because of this.

Fraudulent claims usually point toward defendant’s knowledge that a substance was
dangerous if the defendant concealed the danger and marketed the substance with

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 misleading statements that suggested the product was safe. In such cases, the plaintiff will
need to prove that the defendant had a duty to disclose toxic chemical hazards. This duty
is often imposed by federal or state statutes.

CAUSATION AND TOXIC TORT CLAIMS

The most difficult part of toxic tort litigation is causation. This is so because exposure to
these toxic substances yield illness after very long time. One perfect is of mesothelioma
which takes decade to develop by which crucial evidence may be lost.

Generally, plaintiffs must sue any entity that could have a possible link to their injuries.
This includes manufacturers, distributors, property owners, and companies that store
chemicals. For example, a plaintiff may not know what entity actually manufactured the
asbestos that he or she was exposed to at different job sites that caused his or her
mesothelioma. Plaintiffs usually need to bring all of them into the lawsuit to investigate
and sort out causation.

Toxic tort litigation relies heavily on scientific expert testimony and other evidence that
links a substance to the health condition or disease suffered by the plaintiff. Generally,
these lawsuits rely heavily on scientific studies, so even if a particular chemical was not
previously considered harmful, if a study is published that links the chemical to a disease,
it may be possible for a plaintiff to obtain redress.

WHO TO SUE IN TOXIC TORT CASES?

Figuring out who to sue in toxic tort cases is another tricky problem. Plaintiffs often don't
know who manufactured a dangerous product. For example, suppose a patient is taking a
drug that is manufactured by several different pharmaceutical companies. If the patient
develops cancer years later, it may be difficult to determine which company manufactured the
particular drug the patient took. Similarly, residents who live in an industrial area might
allege a link between their health problems and airborne contaminants in the area, but the
residents may not know which local factory is actually responsible for the release of those
contaminants. The plaintiff may sue:

 Manufacturer and distributor of chemicals

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  Manufacturer and distributer of machines or devices that expose workers to
chemicals.
 Owner and lesser of premises where all of this happened.
 Company that stored the chemical.

LEGAL ENACTMENTS RELATED TO TOXIC TORTS

 Merchant Shipping Act 1995:

Pollution being caused through spill of ships, act provides for strict liability of defendant.
This would harm mostly to the fisherman. Hotelian. This act entitles them to bring an
action for damage and cost of restitution of damage. If the activity can be connected to
war/warlike, unnatural phenomenon of marine environment, if it can be attributed to act
of stranger, the act was committed due to negligent or wrongful decision of an authority,
exercising function in discharge of duty. In all these circumstances this act.
 Deposition of Poisonous waste Act 1972:
If any damage is caused by deposition of waste on land, the person doing so is liable for
that damage provided that the deposit constitute offence under the Act. An offence will be
committed if the waste if deposited otherwise than in accordance with a waste
management licence, kept, treated or disposed in accordance to the license or even if
disposed waste is no contravention of any license it is in a manner likely to cause
pollution of the environment or harm the human health. Liability is by no means
Absolute. A defendant escapes if he is able to prove that he took all reasonable
precautions and exercised all due diligence to avoid the commission of an offence.4

ENVIRONMENT LAW IN INDIA

The need for protection and conservation of environment and sustainable use of natural
resources is reflected in the constitutional framework of India and also in the international
commitments of India. The Constitution under Part IVA (Art 51A-Fundamental Duties)
casts a duty on every citizen of India to protect and improve the natural environment
including forests, lakes, rivers and wildlife, and to have compassion for living creatures.
Further, the Constitution of India under Part IV (Art 48A-Directive Principles of State

4
https://scholarship.law.cornell.edu/facpub/730/

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 Policies) stipulates that the State shall endeavour to protect and improve the environment
and to safeguard the forests and wildlife of the country.

Several environment protection legislations existed even before Independence of India.

However, the true thrust for putting in force a well-developed framework came only after
the UN Conference on the Human Environment (Stockholm, 1972). After the Stockholm
Conference, the National Council for Environmental Policy and Planning was set up in
1972 within the Department of Science and Technology to establish a regulatory body to
look after the environment-related issues. This Council later evolved into a full-fledged
Ministry of Environment and Forests (MoEF).

MoEF was established in 1985, which today is the apex administrative body in the
country for regulating and ensuring environmental protection and lays down the legal and
regulatory framework for the same. Since the 1970s, a number of environment
legislations have been put in place. The MoEF and the pollution control boards ("CPCB",
i.e., Central Pollution Control Board and "SPCBs", i.e., State Pollution Control Boards)
together form the regulatory and administrative core of the sector.

Some important Legislation for environment protection in India is:

 The National Green Tribunal 2010: It has been enacted with an objective of
effective disposal of cases relating to environment pollution, conservation of forest
and other natural resources. And to give relief and compensation for damages to
person and property and for matters connected therewith or incidental thereto.

 The Air (Prevention and Control of Pollution) Act,1981: To counter the

problems associated with air pollution, ambient air quality standards were established
under the Air Act. The Air Act seeks to combat air pollution by prohibiting the use of
polluting fuels and substances, as well as by regulating appliances that give rise to air
pollution. The Air Act empowers the State Government, after consultation with the
SPCBs, to declare any area or areas within the Sate as air pollution control area or
areas. Under the Act, establishing or operating any industrial plant in the pollution
control area requires consent from SPCBs. SPCBs are also expected to test the air in
air pollution control areas, inspect pollution control equipment, and manufacturing
processes.

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  The Water (Prevention and Control of Pollution) Act, 1974: The Water
Prevention and Control of Pollution Act, 1974 (the "Water Act") has been enacted to
provide for the prevention and control of water pollution and to maintain or restore
wholesomeness of water in the country. It further provides for the establishment of
Boards for the prevention and control of water pollution with a view to carry out the
aforesaid purposes. The Water Act prohibits the discharge of pollutants into water
bodies beyond a given standard, and lays down penalties for non-compliance. At the
Centre, the Water Act has set up the CPCB which lays down standards for the
prevention and control of water pollution. At the State level, SPCBs function under
the direction of the CPCB and the State Government.

 The Environment Protection Act 1986: It provides the legal definition of

environment. he Environment Protection Act, 1986 (the "Environment Act") provides
for the protection and improvement of environment. The Environment Protection Act
establishes the framework for studying, planning and implementing long-term
requirements of environmental safety and laying down a system of speedy and
adequate response to situations threatening the environment. It is an umbrella
legislation designed to provide a framework for the coordination of central and state
authorities established under the Water Act, 1974 and the Air Act. The term
"environment" is understood in a very wide term under s 2(a) of the Environment Act.
It includes water, air and land as well as the interrelationship which exists between
water, air and land, and human beings, other living creatures, plants, micro-organisms
and property.

Under the Environment Act, the Central Government is empowered to take measures
necessary to protect and improve the quality of environment by setting standards for
emissions and discharges of pollution in the atmosphere by any person carrying on an
industry or activity; regulating the location of industries; management of hazardous
wastes, and protection of public health and welfare. From time to time, the Central
Government issues notifications under the Environment Act for the protection of
ecologically-sensitive areas or issues guidelines for matters under the Environment
Act.

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 In case of any non-compliance or contravention of the Environment Act, or of the
rules or directions under the said Act, the violator will be punishable with
imprisonment up to five years or with fine up to Rs 1,00,000, or with both. In case of
continuation of such violation, an additional fine of up to Rs 5,000 for every day
during which such failure or contravention continues after the conviction for the first
such failure or contravention, will be levied. Further, if the violation continues beyond
a period of one year after the date of conviction, the offender shall be punishable with
imprisonment for a term which may extend to seven years.5

CASE LAW REALTED TO ENVIRONMENTAL LAW IN INDIA

 Vellore citizens welfare forum v. Union of India AIR 1996 SC 2715(1996) 5 SCC
647

FACTS:

 The petitioner-Vellore citizen Welfare Forum filed a Public Interest Litigation under
article 32 of Indian Constitution.

 Petition was filled against the large-scale pollution caused to river Palar due to the
discharge of untreated effluents by the tanneries and other industries in the state of
Tamil Nadu. The water of River Palar is the main source of drinking and bathing
water for the surrounding people.

 Further, the Tamil Nadu Agricultural University Research Centre found that nearly
35,000 hectares of land has become either totally or partially unfit for cultivation.

JUDGEMENT:

 The Supreme Court examining the report delivered its judgement making all
efforts to maintain a harmony between environment and development.

 The Court also admitted that these tanneries are major foreign exchange earner
and also provide employment to several people.

5
http://www.mondaq.com/india/x/624836/Waste+Management/Environment+Laws+In+India

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  Court delivered its judgment in favour of petitioner and directed all Tanneries to
deposit a sum of 10,000 as fine to Collector.

 The court directed state of TN to award 50,000 to Mr. M.C. Mehta for his brilliant
effort.

 M.C. Mehta v. Kamal Nath and Ors (2000) INSC 334

FACTS:

 Span Motels Private Ltd. (‘the Motel Company’), owner of Span Resorts, had
floated an ambitious project called Span Club.

 The worrying thought was that of the river eating into the mountains, leading to
landslides which occasional occurrence in that area.

 Kamal Nath who was the Minister of Environment and Forests had direct links
with this company.

 The company encroached upon 27.12 big has of land which also included forest
land. The land was regularized and subsequently leased out to the company on
11th April 1994.

 This encroachment had an impact on the course of river Beas. For more than 5
months the Span Resorts management moved bulldozers and earth movers to turn
the course of the river for the second time.

 In September, 1993, these activities by the company caused floods in the river and
a property worth Rs. 105 Crores was destroyed.

 There was issued raised about the Public Trust Doctrine.

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 JUDGEMENT:

 The Court quashed the lease-deed by which forested land was leased to the
Motel Company and held that the construction activity carried out by the
Motel Company was not justified.
 The Motel was ordered to pay compensation by way of cost for the restitution
of the environment and ecology of the area.
 The Motel was ordered to construct a boundary wall at a distance of not more
than 4 meters for the building of the motel beyond which they were not
allowed to use the land of the river basin.
 The Court restricted the Motel from discharging untreated effluent into the
river. Himachal Pradesh Pollution Control Board was directed to inspect and
keep a check.

 MC Mehta (Taj Trapezium matter) v. Union of India (1997) 2 SCC 353

FACTS:

 In this case a petition was filled the threat to the deteriorating beauty of Taj
Mahal to invoke the Air Act 1981 and Water Act 1974 and Environment
Protection Act 1986 for the purpose of relocation of the 292 industries to
prevent emissions generated by coke or coal consuming industries having a
damaging effect on Taj Mahal and people living in the Taj Trapezium Zone,
and further to direct them to change over to natural gas as industrial fuel.

 According to the petitioner, the foundries, chemical/hazardous industries and

the refinery at Mathura were the major sources of damage to the Taj. The
sulphur dioxide emitted by the Mathura Refinery and the industries when
combined with oxygen with the aid of moisture in the atmosphere formed
sulphuric acid called “Acid Rain” which had a corroding effect on the
gleaming white marble. Industrial /refinery emissions, brick-kilns, vehicular
traffic and generator-sets were primarily responsible for polluting the ambient
air around Taj Trapezium.

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 JUDGEMENT:

 The court mentioned the “Polluter Pays” principle in order to mean 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 environment
degradation. Remediation of the damaged environment is part of the process
of “Sustainable Development”

 Applying the above-mentioned principles and the articles, the Supreme Court
ordered the 292 industries which were the causing pollution in TTZ, to switch
over to natural gas for natural fuel.

 The industries which are not in a position to obtain gas connection for any
reason, were required to stop functioning with the aid coke and coal in TTZ.

Also, the workmen employed in the 292 industries were given certain rights and
benifts:

 The workmen shall have continuity of employment at new town and place
where the industry is shifted.

 The period between the closure of the industry in Agra and its restart at the
place of relocation shall be treated as active employment and shall be given
their wages for that period.

 All those workmen who agree to shift with the industry shall be given one
year's wages as "shifting bonus" to help them settle at the new location. The
said bonus shall be paid before 31.1.1998.
 The workmen employed in the industries who do not intend to relocate/obtain
Natural Gas and opt for closure they have been in continuous service (as
defined in Section 25-B of the Industrial Disputes Act, 1947) for not less than
one year in the industries concerned before the said date. They shall be paid
compensation in terms of Section 25-F(b) of the Industrial Disputes Act.
These workmen shall also be paid, in addition, six years' wages as additional
compensation.6
6
https://lawtimesjournal.in/m-c-mehta-v-union-of-india-1986-taj-trapezium-case-case-summary/

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 REVIEW OF LITERATURE

A through analysis of different books, journal, websites and case studies related to the chosen
research topic has allowed me to complete a plethora of definitions and interpretation of the
term ‘Toxic Tort’. Moreover, the study of review of these literatures also made me recognize
the problems related with the applicability of various Environmental Laws in India.

Now we shall briefly look at some of the sources.

Articles:

1. Recent Developments in Toxic Torts by Eric L. Horne and William B. Pentecost

jr.: This article was carefully analysed and a summary was present so as to better
understand the concept of toxic torts.
2. Liability Theories of Toxic Torts by Wendell B. Alcorn, jr.: In this article
definition of toxic tort and its liability has been discussed.

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 CONCLUSION

Toxic torts are the tort which deals with harmful toxicant when released in environment exert
harmful effect. Due to this, various environmental problem occurs and due to these problems,
several laws have been made known as Environment Law, such as Water act, Air Act,
environmental protection act etc. Legal definition of Environment is given in Environment
Protection Act 1986.After this we have discussed these topics in brief and cases that comes
under these topics. Moreover, in those cases we have discussed polluters pay principle also,
which state that whoever has polluted the environment should pay by himself. This project
compiles all the aspects of Toxic Torts and Environmental Law from, its definition to its
liability.

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 BIBLIOGRAPHY

1. WEBSITES:

a. www.manupatra.com
b. www.indiakanoon.org
c. www.casemine.com
d. www.nolo.com

2. BOOKS:
a. Winfield & Jolowicz on Tort 19th ed edited by W. Edwin Peel,
James Goudkamp
b. Tort Liability for Environment Claims in India by Charu Sharma

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