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Bhopal Gas Tragedy Project

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UNIVERSITY OF PETROLEUM AND ENERGY STUDIES COLLEGE OF LEGAL STUDIES DEHRADUN LEGAL METHOD AND LEGAL REASONONG MASS TORT: BHOPAL GAS TRAGEDY

SUBMITTED TO Ms. Shikha Dimri

SUBMITTED BY NAME- ANJALI BHATT SAP ID- (500012004) SEC - A COURSE BBA LLB

INDEXINTRODUCTION y What is a tort? y Difference between a crime and a tort. y Constituents of tort General Wrongful act Damage Remedy y Classifications of tort y Mass tort y Bhopal Gas Tragedy y History of Union Carbide Plant in Bhopal y Trial of Bhopal Gad incident y Group of ministers y The Receding Prospects of Justice for Bhopal y Misplaced Commentary y Latest news on the case y Conclusion

INTRODUCTION WHAT IS A TORT?

Tort means a breach of some duty independent of contract giving rise to a civil cause of action and for which compensation is recoverable. The person committing a tort or wrong is called a tort feasor or wrong doer, and his misdoing is a tortious act. The principal aim of the law of torts is compensation of victims or their dependants.1

DIFFERENCE BETWEEN A CRIME AND A TORT y Tort is an infringement or privation of the private or civil rights belonging to individualswhereas a crime is a breach of public rights and duties which affect the whole community.

y In tort, the wrongdoer has to compensate the injured party whereas, in crime he ispunished by the State in the interests of the society.

y In tort, the action is brought by the injured party but in crime, the proceedings areconducted in the name of the State and the guilty person is punished by the State.

CONSTITUENTS OF TORTy y y y General Wrongful act Damage Remedy

GeneralThe law of torts is fashioned as an instrument for making people adhere to standards of reasonable behavior and respect the rights and interests of one another.2 By interest here is meant a claim, want or desire of a human being or group of human beings which the human being or the group of human being seeks to satisfy. It is however, obvious that every want or desire of a person cannot be protected nor can a person claim that whenever he suffers loss he

1 2

G.Williams, The aims of the Law of Torts, (1951) 4 Current Legal Problems, 137. SETALVAD, Common Law in India

should be compensated by the person who is the author of the loss.3 The law, therefore determines what interests need protection and it also holds the balance when there is a conflict of protected interests.4 A protected interest gives rise to a legal right which in turn gives rise to a corresponding legal duty. Some legal rights are absolute in the sense that mere violation of them leads to the presumption of legal damage. There are other legal rights where there is no presumption and actual damage is necessary to complete the injury which is redressed by the law.

Wrongful ActAn act which infringes a legal right is a wrongful act. The act complained of should, under the circumstances, be legally wrongful as regards the party complaining; that is, it must prejudicially affect him in some legal right; merely that it will, however directly, do him harm in his interest is not enough.5 An act which, prima facie, appears to be innocent may become tortious, if it invades the legal right of another person. A familiar instance is the erection on ones own land of anything which obstructs the light to a neighbours house. It is, no doubt, lawful to erect what one pleases on ones own land; but if by twenty years enjoyment, the neighbor has acquired the legal right to the unobstructed transmission of the light across that land, the erection of any building which substantially obstructs it is an invasion of the right, and so not only does damage, but is unlawful and injurious.

Damage

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But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a

right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complaints and the extent of their remedy.4

For example: privileged occasions, where the interests of the person defamed in his reputation is subordinated to

the interest of the person defaming in the exercise of freedom of speech on these occasions.55

Rogers v. Rajendro Dutt, (1860) 8 MIA 103 (136) : 13 MOORE PC 209. An empty threat to prosecute is not

actionable : Banwari Lal v. Municipal Board, Lucknow, (1941) OWN 864 : AIR 1941 Oudh 572 : 1941 OLR 542.

Damage means the harm or loss suffered or presumed to be suffered by a person as a result of some wrongful act of another. The sum of money awarded by court to compensate damage is called damages. From the point of view of presumption of damage, rights are classified into (1) absolute and (2) qualified. When an absolute right is violated the law conclusively presumes damage although the person wronged may have suffered no pecuniary loss whatsoever. The damage so presumed is called legal damage. Violation of absolute right is, therefore, actionable per se, i.e., without proof of any damage. In case of qualified rights, there is no presumption of legal damage and the violation of such rights is actionable only on proof of actual or special damage. In other words, in case of an absolute right, the injury or wrong, i.e., the tortious action, is complete the moment the right is violated irrespective of whether it is accompanied by any actual damage, whereas in case of a qualified right, the injury or wrong is not complete unless the violation of the right results in actual or special damage.

REMEDYTort is a civil injury, but all civil injuries are not torts. The wrongful act must come under the category of wrongs for which the remedy is a civil action for damages. The essential remedy for a tort is an action for damages, but there are other remedies also, e.g., injunction may be obtained in addition to damages in certain cases of wrongs. Where there is dispossession of land, the plaintiff in addition to damages also claims to recover the land itself. But it is principally the right to damages that brings such wrongful acts within the category of torts. There also exists a large number of unauthorized acts for which only a criminal prosecution can be instituted. Further, damages claimable in a tort action are unliquidated damages. The law of torts is said to be a development of the maxim ubi jus ibi remedium(there is no wrong without a remedy). Jus signifies here the legal authority to do or to demand something; and remedium may be defined to be the right of action, or the means given by the law, for recovery or assertion of a right. The maxim does not mean, as it is sometimes supposed, that there is a legal remedy for every moral or political wrong. If this were its meaning, it would be

manifestly untrue. There is no legal remedy for the breach of a solemn promise not under seal and made without consideration.6 CLASSIFICATION OF TORTS y PERSONAL WRONGS -Wrongs affecting safety and freedom of the person: Assault, battery, false imprisonment . -Wrongs affecting personal relations in the family: Seduction, enticing away of servants. -Wrongs affecting reputation: Slander and libel. -Wrongs affecting estate generally: Deceit, slander of title, fraudulent competition by colourable imitation, malicious prosecution, conspiracy. y WRONGS TO PROPERTY -Trespass: (a) to land (b) to goods -Interference with right analogous to property, such as private franchises, patents, copy rights, trademarks. y WRONGS TO PERSON, ESTATE AND PROPERTY GENERALLY -Nuisance -Negligence -Breach of absolute duties specially attached to the occupation of fixed property, to the ownership and custody of dangerous things, and to the exercise of certain public callings.

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Under Indian Law there is no legal remedy for the breach of a solemn promise made without consideration whether under seal or not.

MASS TORTWHAT IS MASS TORT? A mass tort is a civil action involving numerous plaintiffs against one or a few corporate defendants in state or federal court. As the name implies a mass tort includes many plaintiffs and law firms have used the mass media to reach possible plaintiffs. Mass torts may include mass disaster torts, mass toxic torts and product liability torts. We will be mainly dealing with toxic torts. A toxic tort is one in which the wrongful act consists of exposure to a toxic substance. This could occur in a variety of ways, such as an accidental release (e.g. a chemical spill or explosion), workplace exposure (e.g. to solvent fumes or asbestos), or harmful effects from medications or other consumer products. The injury in a toxic tort case may be acute (immediate) fatal poisoning or burns to the skin are acute injuries. Classically, however, the injury involved in toxic tort ligitation is a serious latent disease, such as cancer or birth defects, that may not develop until many years after the toxic exposure. In cases involving latent disease, there is virtually always a dispute over causation. The plaintiff has the difficult burden of providing that the disease resulted from the particular exposure, which may have occurred ten or twenty years earlier, rather than from some other cause (e.g., genetic inheritance, smoking, lack of exercise, diet, some other toxic exposure, or simply from unknown causes.) Courts can grant a variety of remedies in toxic tort cases that can benefit public health. For example, where toxic wastes leach from a disposal facility and contaminate a public water supply, a court can require the facility's owner to clean up the contamination, pay for an alternative safe water supply, and pay for medical care of anyone who develops disease from the contamination. Moreover, the desire to avoid tort liability may persuade facilities to exercise greater care to prevent the escape of toxic wastes. Toxic tort lawsui