THE NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

PROJECT

on

Legal Framework on Toxic Torts in UK and India: A Comparative

Analysis

submitted by
Netraa Rathee
Enrolment Number: A-2618
Roll Number: 2023BALLB37
I Semester
B. A. LL. B. (Hons.)

submitted to
Prof. (Dr.) Rajiv Khare
Date of submission: 13 October 2023
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DECLARATION

I, Netraa Rathee daughter of Taruna Rathee Roll Number 2023BALLB37 Enrolment

Number A-2618 do hereby declare that the Project titled “Legal Framework on Toxic Torts
in UK and India: A Comparative Analysis ” is an outcome of my own independent
research endeavour and has been carried out under the guidance of Prof. (Dr.) Rajiv Khare.
Literature relied on by me for the purpose of this Project has been fully and completely
acknowledged in the footnotes and bibliography. The Project is not plagiarized and all
reasonable steps have been taken to avoid plagiarism. Similarity Index as per the Turnitin
Report is____%. In case, my project is found to be plagiarized, the course teacher shall have
the full liberty to ask me to revise the Project. If I fail to comply with the instructions of the
teacher, my project may be referred to the Committee Against Use of Unfair Means and I will
comply with the decision of the said Committee.

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LIST OF ABBREVIATIONS

Ors. Others
TV Television
U.K. United Kingdom
v. Versus

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TABLE OF CASES

i. Bailey & Ors v GlaxoSmithKline [2019] England and Wales Court of Appeal (Civil
Division)
ii. Corby Group Litigation v Corby District Council [2009] EWHC 1944 (TCC).
iii. Donoghue v Stevenson, [1932] AC 562, 580
iv. Município de Mariana & Ors v BHP Group (UK) Limited & Anor [2021] EWHC 146
(TCC)
v. Midas Touch Investors Association v. M/s Satyam Computers Services Ltd, Civil
Appeal No. 4786/2009.
vi. Gangadharan Nair v. State Of Kerala Represented By Chief Secretary Government
Secretariat And Others (2020) (Kerala High Court)
vii. Rylands v Fletcher [1868] LR 3 HL 330

TABLE OF STATUTES

Not applicable

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TABLE OF CONTENTS

DECLARATION........................................................................................................................i

LIST OF ABBREVIATIONS....................................................................................................ii

TABLE OF CASES..................................................................................................................iii

TABLE OF STATUTES..........................................................................................................iii

TABLE OF CONTENTS...........................................................................................................4

TOPIC........................................................................................................................................1

ABSTRACT...............................................................................................................................1

REVIEW OF LITERATURE....................................................................................................2

STATEMENT OF PROBLEM..................................................................................................3

HYPOTHESIS...........................................................................................................................3

METHODOLOGY.....................................................................................................................3

OBJECTIVES OF STUDY........................................................................................................3

RESEARCH QUESTIONS........................................................................................................4

DEFINITION AND NATURE OF TORT.................................................................................4

TOXIC TORTS..........................................................................................................................5

TOXIC TORTS IN THE UK.....................................................................................................5

TOXIC TORTS IN INDIA......................................................................................................13

STRICT LIABILITY IN UK VS INDIA.................................................................................22

CONCLUSIONS AND SUGGESTIONS................................................................................25

BIBLIOGRAPHY....................................................................................................................27
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TOPIC

Legal framework on toxic torts in UK and India: A Comparative Analysis

ABSTRACT

Toxic tort litigation, an integral component of environmental law, plays a pivotal role in
addressing the adverse consequences of hazardous substance exposure on individuals,
communities, and the environment. Across the globe, nations grapple with the intricate legal
challenges posed by toxic torts, striving to balance individual rights, environmental
protection, and the pursuit of justice. In this era of globalization, the comparative analysis of
legal frameworks for toxic torts has assumed heightened significance, as it provides a unique
vantage point to evaluate how distinct jurisdictions navigate similar environmental and
health-related concerns. This comparative analysis embarks on a journey to explore and
scrutinize the legal frameworks governing toxic torts in two diverse yet dynamic legal
landscapes: the United Kingdom and India. These two nations, each with its own rich tapestry
of cultural, historical, and legal influences, present a compelling case study for examining
how the complexities of toxic tort litigation are addressed within different societal contexts.

The United Kingdom, known for its rich legal tradition and evolving environmental
jurisprudence, offers a valuable source of experience in addressing toxic tort cases. With a
history of significant legal precedents, a regulatory landscape that continues to develop, and a
well-established framework for environmental protection, the United Kingdom serves as a
benchmark against which the Indian legal framework can be assessed.

The UK's legal system, deeply rooted in common law principles, has seen numerous cases
related to toxic torts over the years. These cases have contributed to the development of a
body of legal precedents, providing guidance and consistency in addressing environmental
and health-related issues

In contrast, India, a rapidly developing nation with a burgeoning population and burgeoning
environmental challenges, faces its own set of complexities in dealing with toxic torts. As it
grapples with the pressing need to balance industrial growth with environmental preservation,

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the Indian legal system is continually evolving to address the multifaceted issues arising from
toxic exposures

This comparative analysis seeks to unravel the nuances of these legal frameworks, dissecting
the key elements that constitute toxic tort litigation. It will delve into the legal standards,
regulations, remedies, and cultural influences that shape how toxic torts are perceived and
addressed in both countries. Moreover, it will explore the broader implications of these legal
frameworks for environmental protection, public health, and the pursuit of justice.

REVIEW OF LITERATURE

 Patel, Nishidh, Toxic Tort: Chemical Toxicants Perspective (January 24, 2012).
Nishidh Patel's paper, "Toxic Tort: Chemical Toxicants Perspective," explores the
legal aspects of toxic tort cases involving chemical substances. The paper delves into
the complexities of chemical-related torts, addressing liability and regulations. It
serves as a valuable resource for those interested in the legal dimensions of toxic tort
cases related to chemical toxicants. It was written in collaboration with Indian
Institute of Technology (IIT), Kharagpur - Rajiv Gandhi School of Intellectual
Property Law (RGSOIPL) and National Academy of Legal Studies and Research
(NALSAR) University

 Percival RV, ‘THE “GREENING” OF THE GLOBAL JUDICIARY’ (2017) 32

Journal of Land Use & Environmental Law 333
"The 'Greening' of the Global Judiciary" refers to the growing influence of
environmental concerns in the decisions and actions of judiciaries worldwide. This
phenomenon signifies a heightened awareness and commitment within the legal
system to address environmental issues and promote sustainability. It reflects a shift
towards incorporating ecological considerations into legal decision-making.

 Hawke N, ‘Toxic torts and regulatory standards in the Law of The United
Kingdom and the European Union’ (1997) 10 Tulane Environmental Law
Journal 279
This comparative analysis explores toxic torts and regulatory standards in the United
Kingdom and the European Union. It examines the legal framework and regulations
governing toxic tort cases in these jurisdictions, highlighting key differences and

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commonalities. The study sheds light on how EU law influences the UK's approach to
toxic torts in a post-Brexit context.

STATEMENT OF PROBLEM

This project examines the legal frameworks for toxic torts in the USA and India, aiming to
identify disparities and similarities in how these nations address environmental liabilities. It
seeks to understand the implications of these differences for justice, environmental
protection, and public health

HYPOTHESIS

The legal framework for toxic torts in the UK and India differs significantly due to variations
in cultural, historical, and regulatory factors, leading to distinct approaches to addressing
environmental liabilities and ensuring justice.

METHODOLOGY

The methodology adopted is of a descriptive and review method. The data has been collected
from primary and secondary sources, which include Internet sources, publications of reputed
journals, bulletins, Books of authors of international repute, research publications and data
collected from certain case studies. Whole of the collected data critically reviewed and
analyzed chapter wise to draw conclusions.

OBJECTIVES OF STUDY

The objectives of study for this project are:

 Conduct a comprehensive comparative analysis of the legal frameworks governing

toxic torts in the United Kingdom and India. Examine key elements such as legal
standards, regulations, remedies, and liability criteria to identify differences and
similarities.

 Evaluate the real-world impact of these legal frameworks on toxic tort litigation
outcomes, including the effectiveness of remedies, the allocation of liability, and the
protection of public health and the environment.

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RESEARCH QUESTIONS

This project aims to answer the following questions:

 What are the key statutory and regulatory differences in the legal frameworks for
toxic torts between the UK and India?
 How do the legal systems, common law in the UK and a blend of common law and
civil law in India, influence the litigation of toxic tort cases?
 What are the historical precedents and landmark cases that have shaped toxic tort
litigation in both the UK and India, and how do they compare?
 How do courts in the UK and India approach issues of liability, causation, and
damages in toxic tort cases?
 What is the level of consistency in compensation awards for toxic tort victims in the
UK and India, and what factors contribute to variations in compensation levels?
 How do regulatory agencies in the UK and India enforce environmental and
occupational safety regulations, and what impact do their actions have on toxic tort
litigation?

DEFINITION AND NATURE OF TORT

The term ‘tort’ has been acquired from the Latin term ‘tortum’ which means ‘to twist’
implying that conduct under tort is conduct which is ‘twisted’, ‘crooked’ or unlawful.

“It is a civil wrong which is not exclusively a breach of contract or breach of

trust” - S. 2(m), The Limtation Act, 1963

A tort is a civil wrong resulting from an act or omission (wrongful act) of the offender and is
punishable by unpaid damages. It is a law based on precedent, so there are no regulations or
methods to control it.

TOXIC TORTS

DEFINITION

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A toxic tort is a type of tort that involves plaintiffs suffering harm as a result of hazardous
substances. Such claims are frequently brought under the product liability concept. While
previous toxic tort cases dealt with damage caused by chemicals such as Agent Orange and
asbestos, toxic tort claims can include drugs or pharmaceuticals, tobacco products and fossil
fuels.

HISTORY

This kind of tort is very recent, having emerged only in the 1970s when the law
acknowledged that lung cancer might be brought on by prolonged exposure to asbestos. The
toxic tort area has flourished because to medical advancements in comprehending toxic
exposure and a rising public acknowledgment that toxic exposure may cause ailments. Not
only has the number of successful toxic tort lawsuits skyrocketed in the years following the
first one, but so has the variety of chemicals that are allegedly harmful. Pharmaceuticals,
lead-based paint, pesticides, solvents, industrial chemicals, poorly ventilated buildings,
cigarettes, electromagnetic fields from utility lines, and hazardous trash are a few examples.

TOXIC TORTS IN THE UK

TYPES OF HAZARDOUS SUBSTANCES COVERED IN TOXIC TORT CLAIMS

As a toxic tort is a legal claim that can be filed for injury resulting from exposure to a
hazardous substance, it is a matter of serious contention that the term ‘hazardous substances’
is defined.

The term applies to a wide range of substances and preparations that occur in a variety of
forms including solids, liquids, gases, vapours and fumes. Regardless of the nature of the
substance, it is regarded as hazardous if it can potentially cause harm when ingested, inhaled,
absorbed by or comes in contact with skin or any other body membrane.

The Health and Safety Executive has imposed workplace exposure limits for 400 toxic
substances in the Control of Substances Hazardous to Health 2002 (COSHH) Act. 1 According
to the Act exposure must be controlled to as low as is reasonably practical.

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Commonly exposed hazardous substances are:

1. Pesticides
2. Solvents use for cleaning
3. Lead based paint
4. Toxic landfill waste
5. Asbestos fibres from old construction materials
6. Acids and other corrosive liquids

STATUTORY FRAMEWORK GOVERNING TOXIC TORTS

Since the law of torts is not a codified law, the regulatory framework for toxic torts in the
UK is primarily governed by a combination of legislation and regulations.

Various health and safety regulations exist in the UK to protect individuals from exposure to
hazardous substances. As mentioned earlier the Control of Substances Hazardous to Health
Regulations 2002 (COSHH) is a central piece of legislation that sets out the requirements for
the control of exposure to hazardous substances in the workplace. Employers have a duty
under COSHH to assess and control risks related to hazardous substances. It categorizes
harmful substances and states workplace exposure limits an employer has to ensure.
According to COSHH several thousand substances are used at work but only 500 substances
have Workplace Exposure Limits. EH40 Workplace exposure limit is a publication which
contains a list of all current Workplace Exposure Limits and this list is legally binding under
COSHH.

COSSH does not cover lead, asbestos and radioactive substances. Each of these substances
has their own regulatory policies.

1. The Control of Asbestos Regulations 20122 came into force on the 6th of April 2012. It
updates the previous regulations in regards to notification of work, medical
survelliance and record keeping.

2. The Control of Lead at Work Regulations 2002 3 (CLAW) place a duty on employers
to prevent, or where this is not reasonably practicable, to control employee exposure

2
The Control of Asbestos Regulations 2012 [2012] SI 632
3
The Control of Lead at Work Regulations 2002 [2002] SI 2676.

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to lead. It sets out safe levels for both male and female workers, thus settting the
Occupational Exposure Limit.

Other statutory regulations include Consumer Protection Act 1987 4. It is a UK law

established to protect consumers, by making sure products are safe. Before this Act, if a
faulty product caused harm, a customer typically had to prove negligence on the part of the
manufacturer. This could be a costly and time-consuming process. But with this Act in place,
a consumer only needs to demonstrate that a product is defective and has caused injury or
harm. An example of a toxic tort case in which the Consumer Protection Act was applied is
Bailey & ors v Glaxosmithkline 5

The Environmental Protection Act 1990 6 is another piece of legislation which deals with the
topic. Section 33 addresses offenses related to the unlawful deposit, treatment, or disposal of
controlled waste. It includes provisions for offenses involving hazardous waste and
substances. Violations of this section can lead to criminal penalties, but it can also have
implications in civil cases related to toxic exposures. Section 34 7 extends liability for offenses
under Section 33 to bodies corporate (i.e., companies and organizations). If a company is
responsible for the unlawful disposal of hazardous waste, it can face criminal liability.
Sections 628 and its subparts of the Act explicitly discusses dangerous or intractable waste. It
talks about disposal, treatment, securing the said substance before treatment, supervision and
so forth and so on. Further Section 79 9 deals with recovery of expenses incurred by local
authorities. This can be of relevance in matters where property has been contaminated, public
or private.

It has to be kept in mind that the Environmental Protection Act 1990 deals with damage
caused to environment and cannot be of much help in circumstances where damage to
property or personal injury has occurred.

APPLICATION OF THE PRINCIPLE OF NEGLIGENCE

The cornerstone of personal injury claims, including those related to toxic exposure is the
principle of negligence. The tort of negligence in its modern form was acquired from Lord
4
Consumer Protection Act (1987) c 43.
5
Bailey & Ors v GlaxoSmithKline [2019] England and Wales Court of Appeal (Civil Division)
6
Environmental Protection Act [1990] c 43
7
Environmental Protection Act 1990 c 43, s 34.
8
Environmental Protection Act 1990 [1990] c 43, s 62
9
Environmental Protection Act 1990 [1990] c 43, s 79

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Atkin’s comments in Donoghue v Steveson10. The claim of negligence begins by establishing

that the defendant owed a duty of care to the plaintiff. Further, it has to be proved that the
forementioned duty was breached and that this breach of duty led the plaintiff to suffer a loss.
One of the critical elements of negligence is establishing a direct causal link between the
defendant's breach of duty and the harm suffered by the plaintiff. In toxic exposure cases, this
means proving that the exposure to toxic substances was a substantial factor in causing the
plaintiff's injuries or damages. This can be a complex aspect, often requiring expert testimony
and scientific evidence to establish the connection.

In the case - Corby Group Litigation v Corby District Council 11, Corby District Council was
in possession of the majority of the British Steel site near the town centre and undertook
reclamation work. Said work involved digging and dumping of 2 million cubic tonnes of
heavily contaminated material in a disused quarry. This hazardous material was excavated
and transported to the old British Steel site. The transportation of the material was done by
and across public roads and in un-sheeted lorries, thus resulting in leaving of toxic waste on
roads.

This case is an example of negligence being used to claim relief or compensation in toxic
torts. All the essentials of negligence have been fulfilled.

REGULATORY AGENCIES

Multiple regulatory bodies play important roles in supervising and regulating hazardous
substances, environmental pollution and so forth. These authorities are in charge of enforcing
rules, conducting investigations, and monitoring compliance with hazardous tort and
environmental laws.

Some regulatory authorities are as follows:

1. Health and Safety Executive: Responsible for ensuring the health and safety of
workers and the public in the workplace. It monitors compliance with these
regulations and takes enforcement action when necessary to ensure that employers
provide safe working conditions for their employees. The HSE maintains a list of all
hazardous substances. Some key acts and regulations that govern the HSE are -
10
Donoghue v Stevenson [1932] AC 562.
11
Corby Group Litigation v Corby District Council [2009] EWHC 1944 (TCC).

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Control of Substances Hazardous to Health (COSHH) Regulations 2002, Health and

Safety at Work etc. Act 1974 etc. 12

2. Medicines & Healthcare products Regulatory Agency : This agency regulates

medicines, medical devices and blood components for transfusion in the UK. Its
responsibilities include ensuring all pharmaceutical and medical devices meet
applicable standards of safety, quality and efficacy. Further, it promotes international
standardisation, innovation and research which is beneficial to public health. Operates
in a statutory framework set by Her Majesty’s Government, working within
government and the wider health system to direct overall policy in the regulatory
field.

3. Food Standards Agency: Protecting consumer interests and public health in the food
business is the FSA's legal duty. They work closely with the government, the
governments of Wales and Northern Ireland, but they do our business honestly and
independently, using data and research as guides

Class actions

A class, collective, or group action is a claim in which the court grants an individual or
people permission to file similarly situated claims in a single case. Collective actions are an
effective method of dealing with a large number of claimants suing a major organization
based on identical facts.

In England, there are multiple ways of bringing a multi-party claim involving multiple
claimants and/or defendants. These include:

1. claims by multiple claimants managed together by the court using its case
management powers;
2. group litigation orders (“GLOs”); and
3. claims by representative claimants.

One of the largest group claim involving multiple claimants in English legal history is
Munícipio de Mariana & Ors v BHP Group (UK) Limited & Anor 13. The Fund a dam in
12
Health and Safety at Work etc. Act 1974 c 37.
13
Município de Mariana & Ors v BHP Group (UK) Limited & Anor [2021] EWHC 146 (TCC)

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Brazil collapsed on November 5, 2015, causing significant loss for the claimants, which
included both private individuals and business entities. The defendants' request to have all of
the claims dismissed for abuse of procedure was granted by the court. Due to a number of
circumstances, including the unmanageable nature of the cases, the strain they would place
on the English court system, and the increased difficulties the claimants had in pursuing their
claims in England compared to Brazil, the court determined that the claims were an abuse of
process. The claimants must pay an amount on account of costs by February 12, 2021, per the
court's judgment. The claimants' capacity to cover the expenses was a worry of the court, and
it signalled a propensity to take further action. After the 12 February 2021 deadline, the court
l its openness to examine the parties' information sharing agreements and voiced worries
about the claimants' capacity to pay the fees.

The Fundo Dam proceedings are one of several class action lawsuits involving environmental
disasters in other countries that are currently being heard by the English High Court against
English parent firms brought by non-English claimants. Other instances include a class action
lawsuit being filed against Vedanta Resources plc by a number of Zambian people and
organizations over damage resulting from its subsidiary's mining operations at the Nchanga
Copper Mine in Zambia, as well as a class action lawsuit being filed against Shell by the
Okpabi and the Bille Communities of the Niger Delta over damage resulting from oil spills
from its subsidiary's oil pipeline operations in Nigeria. Therefore, it is well-established
precedent that the English High Court will assert its jurisdiction over class action lawsuits
involving environmental disasters that occurred in other countries. This most recent ruling in
the Fundo Dam case seems to signify a new high water point. English parent corporations and
other non-English parties who may have contributed to the environmental disaster may now
both be held liable in class action lawsuits filed in the English High Court about
environmental disasters in other jurisdictions. Given that the English High Court is prepared
to establish its jurisdiction over these class action proceedings and that it has recently
indicated that it is prepared to extend that jurisdiction to non-English defendants, it is likely
that the claimant cohort will grow.

EXPERT TESTIMONY AND SCIENTIFIC EVIDENCE

Toxic tort claims are distinguished from typical personal injury proceedings by the
fundamental difficulties of proving individual causation. Cancers and mutations show no

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physical evidence of the inducing agent," therefore in many cases, direct observation of
individual plaintiffs provides little or no proof of causation. Parties must frequently depend
on epidemiological evidence. This might become the focal point of hazardous tort action. 14

The study of populations, rather than individuals, is the characteristic of epidemiology. It

aims to demonstrate links between alleged causes and consequences using one of two
methods: comparing illness incidence across exposed and unexposed groups, or comparing
exposure incidence across sick and healthy populations. These relationships, when properly
interpreted scientifically, offer significant weight to an assumption of causality. In an
individual case, however, epidemiology cannot show causation definitively; at best, it may
demonstrate a certain likelihood that a randomly picked case of disease would not have arisen
absent exposure, or the "relative risk" of the exposed population. Toxic tort litigation thus
entails inferences about causation drawn from group-based data rather than precise judgments
about causation in the individual case

In the United Kingdom, the importance of scientific evidence in cases of toxic torts has been
highlighted in various legal cases. One notable case that underscored the significance of
scientific evidence in toxic tort litigation is the case of "Corby Group Litigation" or "Corby
toxic waste case."

This case involved a group of residents in the town of Corby who claimed that their children
had suffered birth defects and health problems due to exposure to toxic waste during the
construction of a steelworks plant by Corby Borough Council in the 1980s.

The Corby case, which was heard in the mid-2000s, relied heavily on scientific evidence to
establish a link between the exposure to toxic substances, such as heavy metals, and the
health issues suffered by the children. Expert witnesses and epidemiological studies were
presented to demonstrate causation, as it was essential to prove that the exposure to toxic
waste had directly led to the birth defects and health problems in the children.

Ultimately, the case resulted in a settlement, and while it did not establish legal precedent in
the traditional sense, it served as an example of how scientific evidence and expert
testimonies can play a crucial role in toxic tort cases in the UK. The case highlighted the
importance of expert testimony, epidemiological studies, and toxicological evidence in

14
Gold S, ‘Causation in Toxic Torts: Burdens of Proof, Standards of ... - Core’ (core.ac.uk)
<https://core.ac.uk/download/pdf/160249395.pdf> accessed 10 October 2023

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establishing causation and liability in cases where individuals allege harm due to exposure to
hazardous substances.

It's worth noting that other toxic tort cases in the UK have also relied on scientific evidence to
varying degrees, and the importance of such evidence can vary depending on the specific
circumstances of each case. Toxic tort litigation often involves complex scientific and
medical issues, making expert testimony and scientific evidence pivotal in determining the
outcome of these cases.

LIMITATION PERIOD

A limitation period, also known as a statute of limitations, is a specific time limit set by law
within which a legal action or lawsuit must be initiated. Once this time limit expires, the right
to bring a legal claim or lawsuit is generally lost. In other words, a limitation period restricts
the amount of time that a person or entity has to file a lawsuit or legal action for a particular
type of claim.

The date on which a cause of action accrues varies depending on the specific circumstances
and the nature of the legal claim being brought. The applicable limitation period, which is the
time within which a legal action must be initiated, also depends on the type of cause of
action. Here are some key points regarding the accrual of cause of action and limitation
periods in the context of tort claims:

1. Tort: For tort claims excluding personal injury and latent damage the limitation period
is six years from the date the damage is suffered.

2. Torts involving personal injury: In personal injury cases, the most frequent type of
legal claim is rooted in negligence. In the UK, there is a standard three-year limitation
period for initiating a personal injury claim based on negligence. This means that
legal proceedings must be commenced within three years of the claimant's initial
awareness of their injury.

3. Negligence (in respect of latent damage): For claims involving negligence related to
hidden or latent damage, the limitation period is determined by the later of the
following two options: Six years from the date when the damage originally happened

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or three years from the point at which the claimant possessed the necessary
knowledge and the legal right to initiate such a legal action. However, these
timeframes are capped with a maximum limit of 15 years from the negligent act or
omission.

Knowledge Test: It's important to note that while some have argued that the cause of action
should begin when the claimant becomes aware of the defect (knowledge of the defect),
English law generally does not apply a "knowledge test" for determining the date when
damage is first suffered in negligence-based tort claims (as indicated in the case New
Islington and Hackney Housing Association Ltd v Pollard Thomas and Edwards Ltd, 2000).

Limitation periods exist for a reason: they serve as a policy-based measure to prevent the
perpetual threat of lawsuits hanging over defendants, while also encouraging claimants to
bring their claims promptly. Over time, evidence tends to become less reliable and harder to
secure, making it crucial to have rules that prevent stale claims, preserve evidence, and
uphold legal certainty and finality. The European Court of Human Rights acknowledges the
necessity of these procedural rules. However, it emphasizes that limitation periods should not
unduly hinder individuals' access to justice, to the extent that it fundamentally impairs their
right (as seen in the Stubbings v UK case of 1996).

When the limitation period has expired, a claim can be defended on the grounds of being
'time-barred,' regardless of the merits of the actual claim.

TOXIC TORTS IN INDIA

TYPES OF HAZARDOUS SUBSTANCES COVERED IN TOXIC TORT CLAIMS

In India, the parallel legislation to the United Kingdom's Control of Substances Hazardous to
Health (COSHH) Regulations 2002 is the "Manufacture, Storage, and Import of Hazardous
Chemicals Rules, 1989" under the Environment (Protection) Act, 1986 15. These rules are
commonly referred to as the "Chemical Rules."

15
Environment (Protection) Act 1986, India

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The Chemical Rules, along with other relevant environmental and safety regulations, govern
the handling, storage, and management of hazardous chemicals in India. They aim to regulate
the use of hazardous substances to ensure the safety of workers, the public, and the
environment. The Chemical Rules encompass a wide array of hazardous substances and toxic
chemicals, which are meticulously detailed in Schedule 1, Part II of the rules. This schedule,
a comprehensive listing, identifies and categorizes a total of 684 hazardous substances and
toxic chemicals. These substances span various categories, including but not limited to:

1. Chemical Compounds: The schedule encompasses a range of chemical compounds

used in industrial processes, manufacturing, and research, which have the potential to
pose health and environmental risks. Some examples are:
 Hydrochloric Acid: A corrosive and hazardous chemical commonly used in
various industrial processes, such as metal cleaning and pickling.
 Benzene: A volatile organic compound used in the production of plastics,
synthetic fibers, and other materials. It is known for its potential carcinogenic
properties.

2. Toxic Gases: Hazardous gases and vapors, which can be harmful when released into
the atmosphere or when exposed to individuals. Some examples are:
 Chlorine Gas: Used in water treatment, manufacturing, and other applications,
but it is highly toxic when inhaled.
 Ammonia: An industrial gas used in refrigeration, cleaning, and fertilizers,
which can be harmful in high concentrations.

3. Industrial Solvents: Substances often used as solvents in manufacturing and industrial

operations, which can have adverse effects on health and the environment. Some
examples are:
 Toluene: A solvent used in the manufacturing of paints, coatings, and
adhesives. Prolonged exposure can have adverse health effects.
 Xylene: A common solvent in various industries, including printing and
rubber production, but it can be hazardous to health.

4. Heavy Metals: Various heavy metals such as lead, mercury, and cadmium, which are
known for their toxic properties. Elaborating on them:

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 Lead: Found in products like lead-acid batteries and lead-based paints, it is

known for its toxic effects on the nervous system.
 Mercury: Used in thermometers, electrical switches, and other applications.
Mercury exposure can lead to severe health problems.

5. Pesticides and Herbicides: Chemicals used in agriculture and pest control that can
pose health and environmental risks.
 Endosulfan: A widely used agricultural insecticide with environmental and
health risks. It has been banned in several countries due to its toxic effects.
 Paraquat: A highly toxic herbicide used in agriculture, which poses risks to
human health.

6. Pharmaceuticals: Certain pharmaceutical compounds, which, when mismanaged, can

have adverse effects.

STATUTORY FRAMEWORK GOVERNING TOXIC TORTS

In India, the statutory framework governing toxic torts and the liability for harm caused
by exposure to toxic substances is primarily derived from various environmental, labor,
and product liability laws.

The Environment (Protection) Act, 1986 is a significant piece of legislation in India that
plays a crucial role in the context of toxic torts and environmental protection. While the
act itself doesn't explicitly address "toxic torts," it provides the legal framework for
environmental regulation and the prevention of harm caused by toxic substances.

The act grants the central government the authority to take measures for the protection
and improvement of the environment. It empowers the government to regulate and
control activities, processes, and operations that may have adverse environmental
impacts. This includes regulating the handling, storage, and disposal of hazardous and
toxic substances.

The act allows the central government to prescribe environmental standards and
guidelines for various industries and activities. Compliance with these standards is
mandatory. Failure to meet these standards can lead to legal action in cases of
environmental damage or harm to human health

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The Environment (Protection) Act, 1986 provides for the requirement of Environmental
Impact Assessments (EIAs) for certain developmental projects and activities that have the
potential to cause environmental harm. EIAs are a critical tool for evaluating and
mitigating the environmental and health risks associated with projects involving toxic
substances. human health.

The Public Liability Insurance Act, 1991, is closely linked to the Environment
(Protection) Act, as it addresses public liability in cases of industrial accidents involving
hazardous substances. It establishes mechanisms for compensation to victims and is
relevant in toxic tort cases when injuries or damage occur due to exposure to hazardous
chemicals. The act establishes a framework for determining liability in cases of harm
caused by the handling, storage, transportation, or use of hazardous substances. It focuses
on incidents that result in injury or death to third parties, including members of the public
who may be affected by industrial accidents or environmental contamination. It mandates
that industries involved in handling hazardous substances, as specified in the act's
schedule, must take out insurance policies to cover their liability in case of accidents. This
insurance is intended to provide compensation to victims of such incidents. In cases of
public liability, where injuries, death, or property damage occur due to hazardous
substances, the act ensures that compensation is provided to the affected individuals or
their legal heirs. It establishes procedures for filing and processing claims for
compensation. While the act primarily deals with incidents of industrial accidents, it is
relevant in toxic tort cases when individuals or communities seek compensation for health
issues or harm caused by exposure to hazardous substances. It provides a legal framework
for addressing liabilities and ensuring that victims receive fair compensation.

Another pivotal piece of legislation in India is The Factories Act, 1948 that regulates the
working conditions and safety standards in factories. The primary objective of this act is
to ensure the health, safety, and welfare of workers employed in factories. It establishes
various provisions related to factory management, worker protection, and industrial
safety.

The Consumer Protection Act, 2019 is a comprehensive legislation in India that aims to
protect and promote the interests of consumers. It replaces the earlier Consumer
Protection Act of 1986 and introduces several key changes and enhancements in
consumer protection and the redressal of consumer grievances. The primary objective of

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the Consumer Protection Act, 2019, is to safeguard consumer rights and provide a more
robust mechanism for addressing consumer complaints

APPLICATION OF THE PRINCIPLE OF NEGLIGENCE

The application of the principle of negligence in toxic torts in India involves establishing
liability for harm or injuries caused by the negligent actions or omissions of individuals or
entities in relation to toxic substances. In the context of toxic torts, negligence is often a
central legal theory for holding parties accountable for the damages they cause. To
establish negligence, the first step is to demonstrate that the defendant owed a duty of
care to the plaintiff. In toxic tort cases, this duty typically arises when a party is
responsible for handling, managing, or disposing of toxic substances that have the
potential to harm individuals or the environment.

An example is the MC Mehta v. Union of India16 case, in this case, a gas leak from a
fertilizer plant in Delhi led to the release of oleum gas, resulting in injuries and deaths.
The Supreme Court of India held that the company was negligent in the handling of
hazardous materials and failed to take adequate safety precautions. The case highlighted
the duty of industries to exercise care in managing toxic substances and established that
negligence could lead to liability for injuries and fatalities.

The plaintiff must show that the defendant breached the duty of care owed. This means
demonstrating that the defendant failed to take reasonable precautions or violated safety
regulations and standards when dealing with toxic substances. Breaches can include
improper storage, inadequate safety measures, or failure to provide adequate warnings
about the risks associated with a substance.

A case here is Union Carbide Corporation vs. Union of India 17, it also known as the
Bhopal gas tragedy. The Bhopal gas tragedy is one of the world's most catastrophic
industrial disasters, involving the release of methyl isocyanate gas from a pesticide plant.
The case involved issues of negligence, as it was alleged that the plant's operators failed
to maintain safety measures. The court held that the company was negligent and
responsible for the harm caused, resulting in compensation to victims.

16
MC Mehta v. Union of India [1987] 1 SCR 819 (Supreme Court of India).
17
Union Carbide Corporation v. Union of India [1989] 3 SCC 38 (Supreme Court of India)

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The plaintiff must demonstrate that they have suffered actual harm or damages as a result
of the toxic exposure. This can include physical injuries, medical expenses, property
damage, loss of income, or other forms of harm

REGULATORY AUTHORITIES

Numerous regulatory authorities play pivotal roles in the supervision and regulation of
hazardous substances, environmental pollution, and related matters. These agencies are
tasked with enforcing stringent regulations, conducting thorough investigations, and
vigilantly monitoring compliance with laws governing hazardous torts and environmental
protection. These bodies play crucial roles in ensuring environmental protection, public
health, and safety. Here are some of the key regulatory bodies in India that oversee these
areas:

1. Central Pollution Control Board (CPCB): The CPCB is a statutory organization under
the Ministry of Environment, Forest and Climate Change (MoEFCC). It is responsible
for implementing and enforcing environmental laws and standards to control and
prevent pollution. The CPCB conducts research, monitors pollution levels, and sets
guidelines for industries and waste management.

2. State Pollution Control Boards (SPCBs): Each state and union territory in India has its
own State Pollution Control Board, which operates under the guidance of the CPCB.
SPCBs are responsible for enforcing environmental laws at the state level, including
regulating industries, monitoring air and water quality, and ensuring compliance with
pollution control standards.

3. Ministry of Environment, Forest and Climate Change (MoEFCC): The MoEFCC is

the central governing body responsible for formulating and implementing policies and
regulations related to the environment, forests, and climate change

4. National Disaster Management Authority (NDMA): NDMA is responsible for disaster

management in India, including chemical and industrial accidents. It plays a critical
role in coordinating response and relief efforts in the event of hazardous substance-
related emergencies.

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5. National Green Tribunal (NGT): NGT is a specialized environmental court that deals
with cases related to environmental issues, including hazardous substances, pollution,
and environmental violations.

CLASS ACTIONS

Since 1908, class action provisions have been included in the Indian Code of Civil
Procedure (CPC). However, a foundation for class actions was created by a 1976
amendment. The essential provisions are summarized here.18

There must be a large number of people who have the "same interest." The relevant
section's Explanation states that they do not have to have the same cause of action.
According to a Supreme Court decision, "Either the interest must be common or they
must have a common grievance that they seek to be redressed."19

In addition to basic rules, the CPC has particular provisions for collective actions
involving public nuisance or other unlawful activities affecting or expected to impact the
public, regardless of whether any special damage has been inflicted to the individual
bringing the action.20 In the case of charitable or religious trusts, however, a
representative action may be brought by "only a person who has an interest in the trust." 21
In either situation, a court order is necessary.

In addition to the CPC route, a class action can be brought under a variety of special
statutory and constitutional provisions as mentioned below:

1. Code of Civil Procedure 1908;

2. Consumer Protection Act 2019;
3. Companies Act 2013;

18
Order I, Rule 8, The Code of Civil Procedure 1908 (CPC)
19
Chairman, Tamil Nadu Housing Board v. T.N. Ganapathy, (1990) 1 SCC 608.
20
Section 91, CPC.
21
Section 92, CPC.

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4. Competition Act 2002; or

5. PIL

Our main focus will be Public Interest Litigation (PIL) as it focuses on the topic at hand

In India, representative cases take on a new dimension in the form of public interest litigation
(PIL). Indian courts have carved out a unique and wide jurisdiction in which any individual
(without the requirement to reveal any locus standi or specific grievance) can advocate for a
public cause. In the exercise of their writ jurisdiction, these petitions are before the high
courts or the Supreme Court. Indian courts have been exceptionally permissive in accepting
PILs (to the point of being accused of exceeding their proper constitutional limitations and
intruding into the legislative and executive spheres). PIL actions, on the other hand, are quite
popular, are used frequently, and are here to stay. They include almost every aspect of public
life imaginable, including the right to a clean environment, food, water, education, and
medical care.

A PIL suit is distinguished by the court's contempt for locus standi and procedural
compliance. It is even prepared to accept a simple letter from a concerned citizen and
automatically transform it into a writ petition. The petitioner, however, must be perceived to
be operating in good faith and not for personal advantage or profit.

A PIL verdict is binding on everyone, whether or not they were given notice of the
proceedings and whether or not they were given an opportunity to be heard. The parties are
amorphous, and the petitioner is not dominus litus.22

PIL is considered non-adversarial, with the judge taking the initiative and not being bound by
the pleadings or evidence presented. Public policy concepts like res judicata and estoppel are
irrelevant.

The body of case law pertaining to PIL is vast and diverse. An example will be - The
Endosulfan (pesticide) case 23

The Supreme Court took notice of press reports claiming that the insecticide endosulfan
presented substantial health hazards. This insecticide was commonly used to crops and fruit
plants. The Supreme Court controversially (since the actions were based only on press
reports) imposed an immediate ban on the manufacturing, distribution, use, and sale of
22
Midas Touch Investors Association v. M/s Satyam Computers Services Ltd, Civil Appeal No. 4786/2009.
23
Gangadharan Nair v. State Of Kerala Represented By Chief Secretary Government Secretariat And Others
(2020) (Kerala High Court)

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endosulfan and ordered the seizure of inventories. It then formed a committee, led by the
Director General of the Indian Council of Medical Research and the Agriculture
Commissioner, to investigate the dangers of endosulfan. Months later, the Court changed its
interim decision, allowing endosulfan shipment to nations that approved its usage and for
whom Indian exporters had existing purchase orders.

In situations of public wrongs, courts often do not calculate damages exactly or rely on expert
testimony; instead, the court takes a broad approach and orders what it deems reasonable and
suitable given the totality of the facts. In representative actions, damages will be granted
either to specific persons (often through court-appointed commissioners) or, in environmental
instances, merely to the government exchequer to compensate for the harm done.

Once a court certifies an action as a class action, it cannot be withdrawn or abandoned, and
no agreement, compromise, or satisfaction may be reached unless the court has given all
interested parties notice in the authorized way (at the applicant's expense). 24 However, the Act
is silent on how the court should proceed. There is no mechanism, for example, for a 'fairness
hearing' (as they are known in the United States). Due to a lack of clarity in the statutory
framework, Indian courts have proceeded haphazardly and frequently faltered.

LIMITATION PERIOD

Tortious actions, including personal injury claims and claims arising from negligence, have a
limitation period of one year or three years in India. The specific limitation period depends on
the type of tort. For example, a claim for defamation typically has a one-year limitation
period, while claims for injuries or negligence may have a three-year limitation period.

A claim must be brought within three years of the accrual of the "right to sue" under article
113 of Schedule I to the Limitation Act, 1963 (the residuary requirement). It is commonly
understood that a court has no authority to excuse delay in filing a lawsuit (as opposed to an
appeal or application), and it is so critical to be able to determine when the cause of action
arose.

The inquiry becomes more intricate when the harm inflicted is solely financial in nature.
Unlike physical injuries, financial losses often involve several intermediate actions between
the defendant's negligent act and the plaintiff's financial setback. This is typically due to the

24
Order I Rule 8(4), Code of Civil Procedure 1908.

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plaintiff's actions or omissions being influenced by the advice provided. Additionally, there
are situations where the defendant's negligence might not become apparent until the financial
loss is experienced.

STRICT LIABILITY IN UK VS INDIA

STRICT LIABILITY

This concept orginated through the case of Rylands v Fletcher 25 and is also often referfered to
as “Rule in Rylands v Fletcher”. It was laid down in 1868 and the rule laid down in Ryland v
Fletcher states – If a person brings on to his land and keep there any dangerous thing i.e.
anything which is likely to do mischief if it escapes, he will be prima facie answerable for the
damage caused by its escape even though he had not been negligent in keeping it there. This
rule was laid down by Lord Blackburn.

Thus, through the rule laid in Rylands v Fletcher a broad definition can be derived. Strict
liability refers to liability on part of the defendant even in cases where the harm is
unforeseeable or where adequate precautions were taken to avoid foreseeable harm. It focuses
on the defendant’s nature of activity.

The essentials of strict liability are as follows:

1. Presence of a dangerous thing on the defendant’s land

2. Escape of forementioned dangerous thing from the defendant’s land, leading to mischief

3. Use of land must be non-natural

There have been established certain exceptions to the rule of strict liability

STRICT LIABLITY IN THE UK

In the United Kingdom, the legal concept of "strict liability" is not a common or well-
established principle in the context of toxic torts. Instead, the UK legal system typically

25
Rylands v Fletcher [1868] LR 3 HL 330

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applies principles of negligence and fault-based liability in personal injury cases, including
those involving toxic exposure.

Under the principle of negligence, a claimant (the individual bringing the lawsuit) must
demonstrate that the defendant (the party being sued) owed them a duty of care, breached that
duty, and as a result of that breach, the claimant suffered harm or injury. Strict liability, on
the other hand, imposes liability on a party without the need to prove fault or negligence. In
essence, it holds a defendant responsible for harm regardless of their level of care or
precautions taken.

In toxic tort cases in the UK, claimants generally need to establish that the defendant was
negligent in handling hazardous substances or in taking adequate safety measures. This
typically involves proving that the defendant failed to meet the required standard of care in
managing or disposing of toxic materials.

It's important to note that the UK legal system places a significant emphasis on the fault-
based approach to liability, and the concept of strict liability is applied sparingly, primarily in
specific contexts such as product liability, where certain statutes may impose strict liability
on manufacturers and suppliers for defective products that cause harm.

SHIFT FROM STRICT LIABILITY TO ABSOLUTE LIABILITY IN INDIA

In India, the legal framework for addressing liability in toxic tort cases has evolved from a
concept of "strict liability" to a more stringent standard known as "absolute liability." This
transition signifies a shift toward holding parties accountable for environmental and industrial
disasters, even if they can demonstrate that they took all possible precautions. The concept of
"strict liability" and "absolute liability" in the context of toxic torts in India can be understood
as follows:

1. Strict Liability: Strict liability, often associated with the "Rylands v. Fletcher" doctrine,
imposes liability on a person or entity engaged in hazardous activities or possessing
dangerous substances. Under strict liability, the focus is on whether the defendant was
engaged in an inherently dangerous activity or possessed hazardous substances that caused
harm. To establish liability under strict liability, it is typically necessary to demonstrate that

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the defendant was engaged in an ultra-hazardous activity or that there was a non-natural use
of land resulting in harm.

2. Absolute Liability: The concept of absolute liability in India, as established by the

Supreme Court in various judgments, represents a departure from strict liability. It imposes
liability on entities engaged in inherently hazardous activities, and it does not allow for
common law defenses such as the "act of God" or "act of a third party." Under absolute
liability, a person or entity engaged in hazardous activities is held liable for any harm caused,
irrespective of precautions taken. The focus shifts from the nature of the activity to the fact
that harm occurred.

The principle of absolute liability was famously laid down in the case of "MC Mehta v.
Union of India" (1987), where the Supreme Court emphasized that the enterprise responsible
for an accident should be held strictly liable, and defenses like due diligence or taking
reasonable care would not be valid excuses for avoiding liability.

The transition from strict liability to absolute liability reflects the Indian legal system's
commitment to protecting the environment, public health, and safety. It places a greater
burden on entities engaged in hazardous activities to ensure the utmost precautions and safety
measures. The "Polluter Pays" principle, a key component of absolute liability, underscores
the responsibility of those causing environmental damage to bear the costs of remediation and
compensation for victims.

Absolute liability has been a significant development in Indian environmental law and has
been applied in several cases to address environmental and industrial disasters, particularly in
the context of hazardous substances and toxic torts. It places a strong emphasis on preventing
harm and holding liable those who contribute to environmental degradation and public health
risks.

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CONCLUSIONS AND SUGGESTIONS

The legal frameworks for toxic torts in the United Kingdom and India exhibit notable
distinctions in their approaches to liability, regulatory mechanisms, and emphasis on
environmental protection. Each system has its strengths and weaknesses, and suggestions for
improvement can be made for both.

The UK's toxic tort legal framework primarily relies on negligence-based liability. While this
approach provides a degree of flexibility and allows for the consideration of fault and
circumstances in each case, it may pose challenges in cases where demonstrating negligence
is complex, particularly in purely financial harm scenarios

To address environmental concerns more effectively, the UK could consider strengthening its
regulatory bodies and enhancing their capacity to enforce environmental and safety
regulations. This would contribute to better protection of public health and the environment.

While negligence-based liability is a cornerstone of the UK's legal system, it may be worth
exploring mechanisms to address cases of financial harm with complex causal chains.
Creating a legal framework that strikes a balance between fault-based liability and addressing
such complexities could be considered.

India's legal framework for toxic torts has transitioned from a strict liability model to one of
absolute liability, reflecting a strong emphasis on environmental protection and public health.
This approach has been instrumental in holding polluters accountable and encouraging
proactive prevention.

While the principle of absolute liability is essential, its application may benefit from further
clarity. Providing specific guidelines for different industries and scenarios can help
standardize the interpretation and application of the principle.

India could work on streamlining its legal processes to expedite toxic tort cases. Timely
resolution of such cases is crucial for victims seeking compensation and for ensuring
accountability.

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Toxic torts often have transboundary impacts. India could explore international cooperation
and information-sharing mechanisms to address environmental and public health risks
effectively. Collaborating with other nations and sharing best practices can strengthen its
regulatory framework.

Fostering a culture of preventive measures and proactive environmental compliance is

essential. Encouraging industries to adopt best practices and invest in safety and
environmental safeguards can reduce the occurrence of toxic tort cases.

In conclusion, both the UK and India have distinctive legal frameworks for handling toxic
torts, each with its own strengths and areas for improvement. The UK's focus on fault-based
liability offers flexibility but may need further adaptation for complex cases. In contrast,
India's shift towards absolute liability demonstrates a strong commitment to environmental
protection but could benefit from increased clarity and efficiency. Both countries can learn
from each other's experiences and engage in international cooperation to strengthen their
respective systems and better protect public health and the environment. Ultimately, the goal
is to strike a balance between accountability and prevention while ensuring timely justice for
victims of toxic torts.

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BIBLIOGRAPHY

Cases

Bailey & Ors v GlaxoSmithKline [2019] England and Wales Court of Appeal (Civil Division)

Corby Group Litigation v Corby District Council [2009] EWHC 1944 (TCC).

Donoghue v Stevenson, [1932] AC 562, 580

Município de Mariana & Ors v BHP Group (UK) Limited & Anor [2021] EWHC 146 (TCC)

Midas Touch Investors Association v. M/s Satyam Computers Services Ltd, Civil Appeal No.
4786/2009.

Gangadharan Nair v. State Of Kerala Represented By Chief Secretary Government

Secretariat And Others (2020) (Kerala High Court)

Rylands v Fletcher [1868] LR 3 HL 330

Journals

Hawke` N, ‘Toxic Torts and Regulatory Standard in the Law of the United Kingdom and the
EU’ (1997) 10 Tulane Environmental Law Journal 279

Trotter RC, Day SG and Love AE, ‘Bhopal, India and Union Carbide: The Second Tragedy’
(1989) 8 Journal of Business Ethics 439

General KS, ‘Scientific Evidence in the Tort Law’ [1993] Regulating Toxic Substances 49

Websites

‘Toxic Tort’ (Legal Information Institute)

<https://www.law.cornell.edu/wex/toxic_tort#:~:text=A%20toxic%20tort%20is
%20a,the%20doctrine%20of%20product%20liability.> accessed 12 October 2023

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‘Control of Substances Hazardous to Health (COSHH)’ (HSE)

<https://www.hse.gov.uk/coshh/> accessed 12 October 2023

‘Welcome to Parivesh’ (Welcome to PARIVESH) <https://parivesh.nic.in/&gt;> accessed 12

October 2023

‘Victims of Brazil’s Worst Environmental Disaster to Get Day in UK Courts’ (The Guardian,
8 July 2022) <https://www.theguardian.com/environment/2022/jul/08/uk-court-of-
appeal-case-victims-brazil-mariana-dam-collapse-aoe> accessed 12 October 2023

‘About Us’ (GOV.UK) <https://www.gov.uk/government/organisations/medicines-and-

healthcare-products-regulatory-agency/about> accessed 12 October 2023

‘Glaxo Fined £37.6m for “illegal Behaviour” over Seroxat Deals’ (The Guardian, 12
February 2016)<https://www.theguardian.com/business/2016/feb/12/glaxosmithkline-fined-
anti-competitive-behaviour-seroxat> accessed 12 October 2023

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