Environmental Pollution and Common Law Remedies
Environmental Pollution and Common Law Remedies
N UISANCE
The deepest doctrinal roots of modern environmental law
are found in the common law principles of nuisance. A well
known writer says that the substantive law for the protection of
the citizen's environment is basically that of common law relat-
ing to nuisance.4
Kinds of Nuisance
In common law, nuisance are of two types namely public
and private nuisance. 9 A public nuisance can be defined as an
unreasonable interference with a right common to general public.
A private nuisance is a substantial and unreasonable interference
with the use and enjoyment of land.") A public nuisance has been
defined in Section 268 of the Indian Penal Code also."
Reasonableness
Id., p. 135.
Overseas Tankship (U.K.) Ltd. v. Miller S. S. Co. Pty., [1966) 2
All E.R. 709.
Id., p. 719.
The decision of the Court in Overseas Tankship (U.K.) Ltd. v.
Moils Dock and Engg. Co. Ltd., The Wagon Mound (No. 1), [1961]
A.C. 388; [1961] All E.R. 404, was thus overruled in the Wagon
Mound (No. 2) case.
See also the observation of Calabresi, "Some Thoughts on Risk Con-
tribution and the Law of Torts", (1961) 70 Yale L.J. 499 at 537-38.
V. K. BEENA KUMARI 105
19, The importance of the place of the hurt lies in the distinction bet-
ween a nuisance per se and a nuisance in fact. A nuisance per se is
defined as an activity, occupation or structure which constitutes a
nuisance anywhere regardless of how it is operated. A nuisance in
fact is an activity, operation or structure which constitutes a nui-
sance only because of its location or manner of operation. See
Rodgers, op. cit., p. 129.
See Rodgers, op. cit., p. 112.
Supra, n. 13 at p. 125.
Rodgers, op. cit., p. 143.
106 COCHIN UNIVERSITY LAW REVIEW
T RESPASS
Trespass is a theory closely related to nuisance and is
occasionally invoked in environmental cases. Trespass requires
an intentional invasion of the plaintiff's interest in the exclusive
possession of property, whereas nuisance requires a substantial
and unreasonable interference with his use and enjoyment of it.
No substantial injury need be shown for a plaintiff to succeed
in an action for trespass. The only requirement to establish a
trespass is that there must be an intentional unprivileged physical
entry by a person or object on land possessed by another. Upon
proof of technical trespass plaintiff is always entitled to nominal
damages. The plaintiff could also get injunctivity relief against
a technical trespass. Another advantage of trespass action over
an action for nuisance is that an action for trespass has a con-
siderably longer statute of limitations. 26
125 F. Supp. 481 (W.D. Wash, 1954), aff'd, 236 F.2d 224 (9th
Cir. 1956), Cert. denied, 352 U.S. 968 (1957) as cited in James E.
Krier, op. cit., p. 189.
176 F. Supp. 178 (D. Ore. 1959) as cited in James, E. Krier, op.
cit., p. 190.
135 F. Supp. 379 as cited in James, E. Krier, op. cit., pp. 190-191.
226 F. Supp. 169 (D. Ore. 1963) as cited in James, E. Krier, op.
cit., p. 177.
108 COCHIN UNIVERSITY LAW REVIEW
N EGLIGENCE
Negligence is another specific tort on which a common law
action for preventing environmental pollution can be based. It
is the failure to exercise that care which the circumstances
demand in any given situation. Where there is a duty to take
care, reasonable care must be taken to avoid acts or omissions
which can be reasonably foreseen 32 to be likely to cause physical
injury to persons or property. The degree of care required in a
particular case depends on the accompanying circumstances and
may vary according to the amount of risk to be encountered and
to the magnitude of the prospective injury. Where there is no
duty to exercise care, negligence in the popular sense has no
legal consequence.33
The act of negligence may also constitute a nuisance if it
interferes unlawfully and for a substantial length of time with the
enjoyment of another's right in land or it occasions on the high
way a dangerous state of affairs as contrasted with a single
isolated act. 34 Equally, it may also be a breach of the rule in
Rylands v. Fletcher 35 if the negligent act allows the escape of a
non-natural and dangerous thing which the defendant has brought
on his land. 36
The causal relation between negligence and the plaintiff's
injury must be shown by the plaintiff in an action for damages
262 F. 2d 401 (9th Cir. 1958), as cited in James E. Krier, op. cit.,
p. 169.
122 Cal. App. 2d 361 (1954), as cited in James E. Krier, op. cit.,
p. 169.
166 Or. 557, 113 P. 2d 209, as cited in James E. Krier, op. cit.,
p. 154.
110 COCHIN UNIVERSITY LAW REVIEW
the benefit and evidentiary aid of the so-called res ipsa loquitor
that the instrumentality which caused the injury was in the
exclusive possession and control of the defendant. Reynolds
Metals Company v. Y turbide" leaves the "standard of care"
question unanswered. However, in Ure v. United States 4I where
the plaintiff was injured by over flow of water from the irrigation
canal maintained by the defendant, the court observed that a
very high degree of danger calls for a very high degree of care.
The dangers caused by environmental pollution are often poten-
tial dangers difficult to evaluate. Moreover the standard of care,
no doubt, will be seriously affected not only by the state of
scientific knowledge as to the causes and effects of air pollution
but also by the state of technology and the extent to which pre-
vailing pollution control devices are effective and economically
feasible.
D OCTRINE OF STRICT LIABILITY
The rule in Rylands v. Fletcher, 42 although normally dealt
with as a separate tort, can be considered as an extension of the
law of unisance. The rule enunciated by Blackburn, J. in that
case is that "the person who for his own purpose brings on his
lands and collects and keeps there anything likely to be a mischief
if it escapes, must keep it 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". Use of care, skill and public benefit
are not defences. However, "the act of God" excludes liability
under the rule in Rylands v. Fletcher.'"
The doctrine of strict liability - liability without fault - is
worth considering in relation to cases arising from environmental
pollution. In Waschak v. Moffat," hydrogen sulphide gas was
emitted from two of the defendant's culm banks which damaged
258 F. 2d 321, (9th Cir.) cert. denied, 358 U.S. 840 (1958), as cited
in James E. Krier, op. cit., pp. 170-171.
D.C. Or., 93 F. Supp. 779 as cited in James E. Krier, op. cit.,
pp. 153-154.
(1868) L.R. 3 H.L. 330.
Ibid.
379 Pa. 441, 109 A. 2d 310 (1954) as cited James E. Krier, op. cit.,
p. 87.
V. K. BEENA KUMARI 111
For a list of cases where the rule has been applied see Stallybrass,
"Dangerous Things and the Non-natural User of Land", (1929) 3
Camb. L.J. 376 at 382-385.
Eastern and S. African Telegraph Co. Ltd. v. Cape Town Tramways
Companies Ltd., [1902] A.C. 381.
West v. Bristol Tramways Co., [1908] 2 K.B. 14.
Attorney General v. Cory Bros Ltd., [1921] 1 A.C. 521.
Firth v. Bowling Iron Co., (1878) 3 C.P.D. 254.
Hoare & Co. v. Mc Alpine [1923] 1 Ch. 167.
Crowhurst v. Amersham Burial Board, [1978] 4 Ex. 5.
Read v. J. Lyons & Co. Ltd., [1946] 2 All E.R. 471, at p. 474.
See supra n. 42.
See also Note, "The Rule in Rylands v. Fletcher", [1947] 63 L.Q.R.
160.
V. K. BEENA KUMARI 113