Law of Torts

B.B.A L.L. B (Hons.) / Semester 1

Law of Torts

Research Paper

A comparative study between remedies available under

negligence and nuisance with special reference to cases from
environmental torts

Submitted To
Prof. Twinkle Maheshwary
Prof. NMIMS School of Law

Submitted By
Kinjal Bhardwaj
D027
SAP ID: 81022019101

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1 TABLE OF CONTENTS

2Introduction ....................................................................................................................................... 3
2.1Aim and Objectives ........................................................................................................................ 5
3Environmental Law and Torts……….................................................................................................6
4Remedies under Tort Law...................................................................................................................8
4.1Nuisance…………………...............................................................................................................8
4.2Negligence……………………. .....................................................................................................11
5Findings and Suggestions...................................................................................................................16
6Conclusion………………………………………………………………………………………......16
7Bibliography…………………………………………………………………………………...…….17

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2 INTRODUCTION

“ Tort is a civil wrong . It has an effect on a person's legal responsibility for torts or breaches of his
”

or her own duties to others... It has to do with the consideration of rights in civil law and the
avoidance of equitable relationships between the wrongdoer and the injured person. About the fact
that Indian courts continue to apply English tort law, this ideological base has provided for some
advancement and development, which is important to face new challenges, notably in the field of
environmental protection.

For all intents and purposes, India's new legal code is based on the English common law that the
British brought to the country. Beginning in the eighteenth century, British colonial rulers
introduced a general code of law on India, anxious to create a legal structure that would uphold
law and order and preserve property rights. Warren Hastings' Judicial Scheme of 1772 laid the
foundation for this Anglo-Indian judicial architecture, which was built on top of by subsequent
governments. A flurry of over-legislation motivated by a desire to introduce English law and form
“

the framework from the viewpoint of an English lawyer virtually revolutionized the Indian legal
system in the second half of the nineteenth century . The organization and powers of the courts, the
” “

roles of judges and lawyers, the adversarial method of justice, the reliance on judicial precedent,
and the shared funds of principles and strategies propelled the Indian legal system to the pinnacle
of common law systems. It is said that Indian common law includes not only what is exclusively
”

known as common law in England, but also its traditions and some of the principles that underpin
English statute law in the broadest sense of the word. The fair principles developed in England to
relieve the common law's rigors, as well as the practices and procedures that pervade the English
legal system.1

Where no foundation of law could be found, the early charters that established the courts in India
under British rule enabled judges to resolve civil cases based on "right, justice, and good faith."
The principles of right, equality, and good faith, as understood and applied by Indian courts at the
time, were largely consistent with the growth of English common law during the historical
establishment of civil laws in India by English judges and lawyers. In India, English laws regulated
all major fields of civil law, which often took the form of a codified legal order.

1
Bibhu Prasad Tripathy, India, 5 Asia PAC. J. ENVTL. L. 155 (2000).

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India's tort law, which remained uncodified, introduced English law in almost every sector of its
territory. It's worth noting that, under Art. 372 (1) of the Indian Constitution, common law, which
was introduced to India by the British, continues to apply until it's revised or modified by Indian
legislation. The rule was revised and diverged from English law only when the special conditions
in India warranted it. The common law principles of nuisance, negligence, strict liability, trespass,
“

and other tort defenses are used in modern environmental tort remedies. ”

The ecosystem refers to the natural surroundings that aid in the growth, nourishment, and
destruction of life on this planet known as Earth. The natural ecosystem is vital to the survival of
“ life on Earth, as it aids human beings, animals, and other living things in their natural growth and ”

development. However, our world is being harmed as a result of certain poor and greedy human
behavior. It is the most relevant issue, and everyone should consider how to safeguard our world
in order to keep it secure permanently, as well as how to preserve the ecological equilibrium on
this planet in order for life to continue to survive.

To live a happy and safe life, a clean environment is essential. However, as a result of human
neglect, our climate is being highly contaminated. This is a concern that everybody should be
aware of. In order to prosecute those who are negligent, there is a rule in place.

The Environmental Protection Act of 1986 is a law that prohibits contamination of the atmosphere.
This law was passed in the repercussion of the tragic and horrific Bhopal Gas Tragedy.

While it seems that the Environmental Protection Act is adequate to deal with cases involving
contamination of soil, water, and air, the act's breadth is still very restricted. It simply means that
the act is merely preventative in intent, though tort law still acts as a redress. Compensation is the
best means for victims of environmental degradation to achieve restitution.2

Furthermore, since the radical solution to the scheme of locus standi (cause of action) is
extinguished with the issuance of a sixty-day notice, the defendant has enough time to refute any
and all evidence or errors on his part, this act provides a loophole.

Large businesses (for example, chemical companies) often pollute the environment, causing harm
to people and/or their property. It is impossible for an individual to rely on laws for protection due

2
P. Leelakrishnan, Law and Sustainable Development in India, 9 J. ENERGY & NAT. Resources L. 193 (1991).
“ ”

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to the high cost of litigation. The law offers insufficient protection. Specific claims benefit from
tort law because it focuses on compensating the injured party. It is still strong after so many years
of democracy.

As a result, tort law, in addition to statutes, provides a civil mechanism for obtaining restitution
where an individual is injured as a result of another's environmental contamination.

However, we all agree that tort law should only be applied where someone's property or body is
damaged. Since contamination has a broad effect on the environment, tort law should only be
applied where there is environmental harm.

2.1 AIM AND OBJECTIVES OF THE PAPER

AIM: The purpose of the paper at the hand is to understand and analyze the remedies available
under negligence and nuisance along with paying special reference to cases from the
environmental branch of torts.

“ OBJECTIVES : The objectives of the paper are as follows

” “ ”

➢ To highlight the difference between existing environmental laws and torts.

➢ To analyze the remedies available under tort law with emphasis on negligence and
nuisance.
➢ To study various case laws in relation to negligence and nuisance remedies.

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3 ENVIRONMENT LAW AND TORTS

As an emerging area attracting cross-disciplinary study, environmental law in India, as in many

other countries, poses a challenge to current legal frameworks. India's problems in this region can
be categorized into three generations, each with its own collection of issues.

“ Environmental law, also known as environmental and natural resource law, is a branch of law that
deals with the protection of the environment and natural resources. It's a broad word that refers to
”

a set of conventions, legislation, rules, and general and customary laws that deal with the impact
of human interaction on the natural world. Environmental waste is handled by the key
environmental law regimes.

“ Various national legislation [such as the Water (Prevention and Control of Pollution) Act, 1974;
Air (Prevention and Control of Pollution) Act, 1981; Wild Life Preservation Act, 1972; Woodland
(Conservation) Act, 1980] were praised as the solution to the first century's issues. Prior ”

environmental law prevailed, but it was not fully informed by our current environmental
philosophy. Consider the Indian Forest Act of 1927, which reduced forests to a revenue-generating
State-managed resource, reducing their environmental importance and, as a result, the need for
protection. Such first-gen challenges included policy questions and determining which
government department or ministry would be in charge of environmental issues, which led to the
establishment of the Ministry of Environment and Forests [MoEF] and its departmental standards
“ ”

for agencies, among other things.3

The Environment (Protection) Act, 1986 was passed by the Indian government in response to the
Bhopal gas tragedy. Prior to the enactment of the EPA, the regulations were mainly concerned
with particular forms of emissions (such as air and water). The creation of the Environmental
Protection Agency (EPA) met the need for a central agency that could take the lead in
environmental protection. It's in the form of umbrella legislation, and it's intended to give the
federal government a framework for coordinating the activities of various federal and state

3
Shiraz Rustomjee, Global Environmental Law and India, 36 INT'l J. LEGAL INFO. 342 (2008).
“ ”

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agencies recognized under preceding laws. It also takes the form of an assisting statute, which
grants the executive broad powers so that bureaucrats may write the requisite rules and regulations.
“ ”

“ According to Section 2(a) of the Environmental Protection Act, 1986, Environment includes ”

a) Water, air, and land

“ ”

b) The inter-relationship which exists among and between water, air, land, and human beings,
“

other living creatures, plants, microorganisms, and property . ”

The act was conceded with the following intentions:

1. To Improve the Quality of Environment :
“ ”

“ The Central Government is empowered under this Act to take any and all actions it finds fit to
”

guard and recover the environment's condition.

2. Safe Limits :
“ ”

The Act sets rules for the emanation and release of chemicals into the atmosphere from a range of
sources. Furthermore, it limits the fields in which certain business activities, procedures, or class
of sectors can be conducted, subject to such protections.

3. Handling of Hazardous Substances :

“ ”

The Act was enacted to protect atmosphere by controlling pollution discharge and dangerous
material storage.

4. Prevention of Accidents :
“ ”

The Act establishes protocols and safeguards for the prevention of incidents that could result in
degradation of the atmosphere, as well as remedial action and deterrent punishment for those that
risk human environment, protection, and health.4

Tort law, alternatively, is concerned with unintended effects that impact people (individuals and
k

businesses) as well as the environment. Rather than the items themselves, the term "property"
refers to items that are matter to a legal structure. The earth's stratosphere, for example, is not

4
P. Leelakrishnan, Law and Sustainable Development in India, 9 J. ENERGY & NAT. Resources L. 193 (1991).
“ ”

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subject to any civil property scheme and therefore does not fall within tort law's authority. Tort
law is put into effect when something goes wrong. As a consequence, tort law can extend where
there is ecological contamination. It is further concerned with recovery than with deterrence. It is
more concerned with restoration than with vengeance. It is the strategie for coping with
environmental waste.

To ensure the protection of the environment, India has enacted a slew of laws covering a wide
range of topics. However, owing to loopholes in the rules or even the slackness of the authorities
administering the laws, these provisions have remained merely a set of powerless words that have
lost their influence over time. The right to life and personal liberty, as established by Article 21,
“

has been interpreted by the Supreme Court to include a right to a pollution-free climate. However,
”

in the last two decades, Indian environmental law has progressed dramatically, with constitutional
courts defining the fundamental concepts of the environmental justice system. In almost every area
of its sector, India's uncodified tort law mirrored English law. It's worth noting that common law,
““

which was first adopted into India by the British, continues to apply here under Act. 372 (1)6 of
the Indian Constitution until it's been amended or updated by Indian legislation. Only when the
””

peculiar circumstances that existed in India warranted it, was the law changed and diverged from
English law. The common law rules of nuisance, negligence, strict liability, and trespass, as well
“

as other tort remedies, are the foundations of contemporary environmental tort remedies. 5 ”

Our nation has grown tremendously and quickly since the 1990s. The government has neglected
the general public in several respects in order to stimulate and maintain the country's growth
wagon. To conserve and protect its natural resources, India utilizes a number of regulatory tools.
Government authorities across the world wield enormous authority to control industry, mines, and
other polluters, but they are hesitant to use it to prosecute those who break the rules. About 200
federal and state laws, either expressly or implicitly, address environmental conservation.
Unfortunately, the proliferation of such laws has not prevented environmental pollution, which has
worsened over time.

5
Troyen A. Brennan, Environmental Torts, 46 VAND. L. REV. 1 (1993).

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The study is heavily focused on Orissa. It has Asia's biggest accumulation of iron ores, as well as
a significant deposit of mineral resources. Posco, Arcelor Mittal, TATA, Jindal, and Sterlite are
“

among the major players investing billions of dollars in the construction of steel plants . The”

definition of the state is rather detailed. It would provide thousands of jobs for the disadvantaged.
However, the technique seems to be unsuccessful. Because of the government's inaction,
contamination in mining belts is worrying. People are living under conditions that are
unimaginable. Health concerns have arisen as a result of a lack of hygiene, infrastructure, and
social life in those areas.

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4 REMEDIES UNDER TORT LAW

While tort law does not deal specifically with pollution regulation, the concepts derived from some
elements of the law can be used to spell out effluence regulator laws and successfully apply them.
The bulk of environmental contamination tort cases in India are classified into four groups:
➢ Nuisance
➢ Trespass
➢ Negligence
➢ Strict Liability.

4.1 NUISANCE

It applies to something that irritates, offends, or irritates. The essence of the annoyance may be
public or private. As a consequence, actions that threaten the ease, fitness, or welfare of others are
called nuisances. Odor, noise, fumes, gas, fire, smoke, germs, vibrations, and other factors can
cause interference. 6The use of defendant's property causes unfair and needless inconvenience,
which is the foundation of a private nuisance suit. There are a number of limits to the tort statute
of nuisance as a cure for environmental harm. The basis of a private nuisance suit is the unfair and
needless disruption incurred by the defendant's use of his or her property.

“ To begin with, the reasonableness of the defendant's actions is a question mark, or otherwise
unreasonableness on the defendant's conduct is very difficult to assert, and is usually measured
against the seriousness of the plaintiff's damages.” Since the subject necessitates more technical
facts, developing a causal link between the pollutant and the damage in exposure cases is very
problematic for the complainant. It's difficult to show that the defendant's unreasonable conduct
induced material harm, particularly in cases involving contaminants.7

6
Nuisance, 55 S. AFRICAN L.J. 60 (1938).
7
Nuisance, 1 N.C. J. L. 584 (1904).

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Case Laws
1. Ram Baj Singh Vs Babu Lal Yadav : A brick grinding machine was installed ahead of a
“ ”

medical practitioner's consultation chamber in this situation. The system produced some
dirt and clamor, which poisoned air and infiltrated medical practitioner's consultation
room, causing physical discomfort to him and his patients.

According to the Allahabad High Court, this is a private disturbance that may fairly be said
to cause harm, pain, or irritation to an individual. Noise pollution is described as the
exposure of reluctant people to harmful and damaging levels of noise. It’s better known as
noise nuisance, as such, it is subject to tort law. No person may exercise his or her
constitutional right to freedom in a way that it causes annoyance to others or becomes a
health threat operation.8

2. Free Legal Aid Cell Vs Govt. of NCT of Delhi : The petition was lodged on behalf of a
“ ”

group of civic advocates working in the public interest in this case. The petition's key
concern was that adults and children are vulnerable to physical and mental health threats
owing to fireworks shows and practice at celebrations plus weddings. It was also stated
that noise pollution had been a normal phenomenon as a consequence of the indiscriminate
usage of loudspeakers, impacting residents' emotional and physical wellbeing and creating
a hassle.

The Delhi high court correctly noted that impact of noise on healthiness is a subject that
has thus far to gain the packed consideration it needs from our judiciary. Noise can be
considered a pollutant for the reason that it pollutes the atmosphere, causes nuisance, and
has negative impact on a person's wellbeing if it surpasses a judicious limit.

3. Lakshmipathy vs State : The petitioners in this case were affected by factories and
“ ”

manufacturing establishments operating in a residential district, which they said violated

the Karnataka Town and Country Planning Act of 1961. The solicitors were raising

8
C. M. Abraham & Sushila Abraham, The Bhopal Case and the Development of Environmental Law in India,
“

40 INT'l & COMP. L.Q. 334 (1991). ”

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questions about industrial development in a residential district, such as the establishment

and operation of mills, warehouses, plant sheds, the distillation of greases and lubricating
oils, and the respondents' production of flammable goods.

Such factories must be stopped, according to the Karnataka High Court, which also claimed
that earmarked residential areas should not be used for such purposes. The court also
ordered the authorities to clear all encroachments on public lands and roads in the affected
region and to carry out the court's order within sixty days of receiving a copy of the order.
The petitioners were also awarded Rs. 3000 in expenses from the respondents. “

4.2 NEGLIGENCE
Another particular tort upon which a common law suit deter contamination may be taken is
negligence. Negligence occurs when to hand is a duty to look out and that duty is not in use,
resulting in hurt to an additional being. When someone acts negligently, they cause someone else
to suffer a harm, discomfort, or irritation.9
The plaintiff must display:
● the defendant was beneath a duty to take judicious caution to avoid the damage carped
“ ”

● breach of the duty

“ ”

● the harm that may have been incurred in reality by a violation of duty which must have been
“

fairly probable as a result of the breach. ”

Challenge in creating a causal relation between one's negligent behavior and another's accident is
an issue in cases of negligence. It's also impossible and troublesome to show that the injury's
impact is dormant for a long time.10

9
James Edward Brearton, Nuisance, Negligence and Contributory Negligence, 9 ALB. L. REV. 1 (1939).
10
Liens, 2 Bus. L.J. 450 (-).

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Case Laws

1. Mukesh Textile Mills vs Subramanya Sastri : To stop pollution-causing operations, the

“ ”

court used a common law negligence suit in this case. The appellant maintained a sugar
plant and held golden syrup, a by-product of sugar manufacture, in tanks near respondent's
l

property parted by a water channel. The tank eventually surrendered. It overflowed into the
waterway and flooded respondent's paddy fields. The judge found the appellant guilty on
two counts.

To begin with, the appellant owes a duty of fair care in terms of upkeep to the appellant,
who had a significant amount of molasses in barrels. It amounted to incompetence on the
part of the appellant if his duty to take care was not properly carried out. The court went
on to state that the appellant had a reasonable expectation of the damage that would result
if the tank exploded. Second, liability rises if the land is placed to an unnatural use. As a
“

result, the court found that the appellant was liable for the consequences of the fluid leaking
from the tank. ”

2. Municipal Board, Jaunpur vs Brahm Kishor : The defendants (Municipal Authorities) dug
“ ”

a trench for road repairs on a public road. In the dark, the appellant, who was riding home
on or after the stick, failed to see the gulley and clear-fell into it, crippling himself. To
prevent such accidents, the local authority had not released any public warnings or
provided any lighting, hazard alerts, warning signs, or barricades, among other items.

The court claimed that the cyclist's lack of a light in front of the bike makes little sense as
the light from cyclist's kerosene spot would not clear the ditch in general. The court found
that the collision was caused by the defendants' (Municipal Authorities') negligence, that
they stood thus liable. It existed their duty to send motorists on the lane equal notice and
provide light, but they failed to do so.

3. Ramdas and Sons vs Bhuwaneshwar Prasad Singh: The defendants in this event were
“

contractors who planned to place a water channel in front of a government hospital and

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dug trenches to do so. The trench was not barricaded, and there was no red light to alert
passers-by of the risk. The plaintiff, who was on his way to the hospital, fell into the trench
at 8 p.m. and was severely injured. According to the facts, the trench was in front of the
hospital's main entrance. People used to ride at all hours of the day and night on the road
leading to the hospital.

Furthermore, the road was absolutely dark due to the blackout that was in place at the time
due to the Indo-Pak conflict. The appellant filed a complaint against the defendant for
damages. The defendants were found to be responsible because they refused to take good
caution in erecting a barrier across the trench and failure to have a red light.11

11
C. M. Abraham & Sushila Abraham, The Bhopal Case and the Development of Environmental Law in India,
“

40 INT'l & COMP. L.Q. 334 (1991). ”

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5 FINDINGS AND SUGGESTIONS

Tort legislation has a long history of being a blunt weapon for redressing environmental harms.
Indeed, the lack of a clear fit for such environmental harms and a remedy under common law tort
practice has been a major factor in the recent growth of environmental statutes and regulations.
Nonetheless, common tort claims have been successful in addressing a variety of environmental
harms. When the damage is to a well-defined location, individual, or community of persons,
general and particular causation are readily supported, and the elements of a tort cause of action
are strongly resembled, this happens. When the above requirements do not exist simultaneously,
whether one of them is poor, the possibility of combining tort law with other methods, or strictly
relying on them, should be weighed. Since tort law and ex ante security laws are the most widely
used solutions in environmental pollution situations, it's worth looking at the possibilities of
merging the two during this phase. It's also necessary to find out whether there are any cases where
using ex ante safety regulation strictly isn't the right idea.

As a result, the fundamental dissimilarity in the middle of environmental laws and environmental
torts exists that rules are maintained to ensure overall public well-being, whereas torts are
introduced to sue people for compensations. The variance amid environmental legislation and
environmental torts when it comes to hazardous waste is that under environmental law, the
standard of fact on whether anything caused something else is altered. In a tort proceeding, the
load of evidence is going on the plaintiff to attest that the action incurred harm.

Since reviewing the aforementioned cases, it was discovered that the Supreme Court is now
applying numerous regulatory provisions for environmental protection. The court is attempting to
fill up the gaps in the statute that it is lacking. This emerging modernisms and advances in India,
which are motivated by jurisdictive advocacy, uncluttered up a slew of new ways to help the
government. The Indian courts are acutely aware of the unique nature of environmental rights,
which occur only as natural resources are limited and cannot be replenished. There are a couple of
suggestions to think on.

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6 CONCLUSION
The powers of the Emission Control Boards are inadequate for pollution prevention. The Boards
do not have the authority to sue violators, but they may bring legal suit against them in court,
which defeats the purpose and spirit of the Environmental Laws by lengthening the time it takes
to resolve cases. As a consequence, it's important that the Boards be granted more control. If
enacting environmental laws is necessary to make certain an unpolluted climate, India will most
likely be the smallest amount unclean country on earth. Tort regulation provides redress for
environmental issues in addition to environmental regulations.

Despite the existence of an environmental agenda, a regulatory mandate for environmental

protection, and a whirlwind of legislation and implementation facilities, environmental pollution
continues to be a major source of concern in our region. The future must be regarded as a
significant problem that civilization all together must address by devising fresh approaches and
machineries for coping with dynamic problems that have emerged as a consequence of rapid
economic growth. New methods and procedures will ensure the highest level of transparency and
productivity of government activities, as well as modes and programs for effectively enforcing
environmental laws, which are the most common resources enjoyed by all citizens.

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7 BIBLIOGRAPHY
➢ Bibhu Prasad Tripathy, India, 5 Asia PAC. J. ENVTL. L. 155 (2000).

➢ P. Leelakrishnan, Law and Sustainable Development in India, 9 J. ENERGY & NAT.

Resources L. 193 (1991).

➢ Shiraz Rustomjee, Global Environmental Law and India, 36 INT'l J. LEGAL INFO. 342 (2008).

➢ Troyen A. Brennan, Environmental Torts, 46 VAND. L. REV. 1 (1993).

➢ Nuisance, 55 S. AFRICAN L.J. 60 (1938).

➢ Nuisance, 1 N.C. J. L. 584 (1904).

➢ C. M. Abraham & Sushila Abraham, The Bhopal Case and the Development of Environmental
Law in India, 40 INT'l & COMP. L.Q. 334 (1991).

➢ James Edward Brearton, Nuisance, Negligence and Contributory Negligence, 9 ALB. L. REV. 1
(1939).

➢ C. M. Abraham & Sushila Abraham, The Bhopal Case and the Development of Environmental
Law in India, 40 INT'l & COMP. L.Q. 334 (1991).

➢ Milan C. Miskovsky , Janice C. Griffith, Kim H. Bullerdick & M. Teresa

Schmiedeler, Recent Developments in Urban Environment Law, 17 URB. LAW. 995 (1985).

➢ J. Patrick Meagher, Environmental Protection and Industries in Developing Countries:

The Case of India since Bhopal, 3 GEO. INT'l ENVTL. L. REV. 1 (1990).

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