Appendix A

CONCEPT OF STANDING, ITS LIBERALISATON & MASS TORT LITIGATION IN INDIA

Submitted by: PURVASHA MANSHARAMANI Division: D Class: BA.,LLB of Symbiosis Law School, NOIDA Symbiosis International University PUNE

IN MARCH 2011

UNDER THE GUIDANCE OF Prof . Chandrashekhar Rawandale DIRECTOR Symbiosis Law School, NOIDA

Appendix B Certificate

1. The project entitled CONCEPT OF STANDING, ITS LIBERALISATION & MASS TORT LITIGATION IN INDIA submitted to the Symbiosis Law School, NOIDA for Law of Torts, MV Accident and Consumer Protection Laws I as part of Internal assessment is based on my original work carried out under the guidance of Prof. Chanderashekhar Rawandale. The research work has not been submitted elsewhere for award of any degree. 2. The material borrowed from other sources and incorporated in the thesis has been duly acknowledged. 3. I understand that I myself could be held responsible and accountable for plagiarism, if any, detected later on.

Signature of the candidate Date: 17th March 2011

Acknowledgment:
I owe a great many thanks to a great many people who helped and supported me during the completion of the project. My deepest thanks to Lecturer, Mr Chandrashekhar Rawandale the Guide of the project for guiding and correcting various documents of mine with attention and care. He has taken pain to go through the project and make necessary correction as and when needed. I would also thank my Institution and my faculty members without whom this project would have been a distant reality. I also extend my heartfelt thanks to my family and well wishers.

Appendix C

Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 -

Title page (Appendix A) Certificate (Appendix B) Acknowledgements Index List of Tables (If any) List of Figures (If any)

Bibliography

What is a tort? Tort is a wrongful act, not including a breach of contract or trust, which results in injury to another's person, property, reputation, or the like, and for which the injured party is entitled tocompens ation. There are four elements to a tort, all of which must be present before the court can order a remedy: 1. Duty. The defendant must owe a legal duty to the victim. A duty is a legally enforceable obligation to conform to a particular standard of conduct. Except in malpractice and strict liability cases, the duty is set by what a "reasonable man of ordinary prudence" would have done. There is a general duty to prevent foreseeable injury to a victim. 2. Breach of the duty. The defendant breached that duty. 3. Causation. The breach was the cause of an injury to the victim. The causation does not need to be direct: defendant's act (or failure to act) could begin a continuous sequence of events that ended in plaintiff's injury, a so-called "proximate cause". 4. Injury. There must be an injury. In most cases, there must be a physical or financial injury to the victim, but sometimes emotional distress, embarrassment, or dignitary harms are adequate for recovery.

Standing
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. Legal concept of standing

To have standing, Plaintiffs must first allege that they suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favourable decision. In the FAC, Plaintiffs have failed to establish their standing to sue. Standing requirements There are three standing requirements: 1. Injury: The plaintiff must have suffered or imminently will suffer injuryan invasion of a legally protected interest that is concrete and particularized. The injury must be actual or imminent, distinct and palpable, not abstract. This injury could be economic as well as non-economic. 2. Causation: There must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court.

3. Redress ability: It must be likely, as opposed to merely speculative, that a favourable court decision will redress the injury.

Mass tort:
Mass torts may be distinguished from other personal injury claims by several distinct features. First, mass torts involve large numbers of claims that are associated with a single product. Second, despite the number of claimants, there is a commonality of factual and legal issues. Third, there is value interdependence between the different claims.

A mass tort is a collective tort or an injury to a group of persons. There are two instances of mass torts: 1) One source of injury at one point in time, such as an airline accident, or 2) Several victims with several tort-feasors but one common instrumentality such as a defective medicine.

Mass tort litigation:

Mass injury claim civil litigation a class of civil actions in which multiple plaintiffs are injured in a similar fashion by a defective product, hazardous substance, or disaster.

There have been numerous instances over the years where a company or institution has hurt a large number of people with something that they have put on the market. Some examples of this include the fen-phen lawsuits of the late 1990s and early 2000s, the huge cigarette/tobacco industry settlement, and lawsuits filed over the Firestone tire explosions. When a large number of plaintiffs are hurt, they will frequently go into a lawsuit together. This is particularly true when the people hurt have very similar cases. When a list of plaintiffs gets extremely long, it is called a mass tort lawsuit. A mass tort lawsuit is a civil action that involves numerous plaintiffs who are all fighting one or a few corporate defendants. This type of action can be performed in either federal or state court. As the name implies, mass tort includes numerous plaintiffs. Law firms frequently use mass media outlets to reach possible plaintiffs. This type of tort can include disaster torts, mass toxic torts, and product liability torts. Mass tort litigation is a relatively new area of law. It is a complex and demanding area of law. One of the most difficult parts of mass tort litigation is determining just who is at fault and how much fault there is. There are a number of fields where a person might become part of a mass tort procedure. These include product liability, such as for breast implants or tobacco; large business antitrust claims, like price fixing; and large scale, "man-made" disasters like airplane crashes and chemical plant explosions.

Once a person has established a mass tort claim, the procedure is similar to a regular personal injury, or tort, lawsuit. It is a civil procedure which means that a person needs to have a cause of action. While there are very similar to regular tort proceedings, there are some significant differences between regular tort and mass tort proceedings. Mass torts are different in that they involve large numbers of claims associated with a single product. A second difference is that despite the number of claimants there is a commonality of factual and legal issues. This means that the individuals serving as plaintiffs have very similar facts in their cases and don't have differing legal issues. The final difference is that the claims have value interdependence. This means that for the claims to be serious, they have a dependence on the other claims.

Examples: Bhopal gas tragedy:

On the intervening night between 2nd and 3rd December 1984, there was a leak of the highly noxious and abnormally dangerous gas (Methyl Iso-Cyanide) from the plant of Union Carbide India Limited (UCIL). This resulted in a large number of causalities. The gas also resulted in deformities and many kinds of diseases. The incident was a disaster in the true sense of the term. On 7th December, 1984, Chairman of UCC Mr. Warren Anderson came to Bhopal and was arrested. He was later released on bail. The State Government and the Union Government failed to provide any immediate relief, since there were no preparations to prevent and handle a disaster of this magnitude. The company also failed to take any measures to help the victims of the incident. The Government of India passed The Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 on 29th March, 1985. This Act gave Government the power to represent the victims of the disaster in all suits arising out of the Bhopal Disaster. This Act was based on the doctrine of parens patriae. It included the future generations of victims within its scope. The Government specifically mentioned that it sought to invoke this doctrine for all victims because a majority of them were physically and economically incapable of individually litigating their claims.

The doctrine was invoked not only for the protection of the victims, but also to protect, preserve and restore the earth, air, water and economy of the republic. On 8th April, 1985 Union of India filed a complaint before the U.S. District Court, Southern District of New York. Justice Keenan passed an order on 12th May, 1986 allowing the application of UCC on forum non convenience but the UCC was held to be amenable to jurisdiction of the Indian courts. It was only on 17th December, 1987, that the District Judge of Bhopal ordered an interim relief amounting to Rs. 350 crores. The Madhya Pradesh High Court on 4thApril, 1988 delivered its judgment and passed an order modifying the order of the District Judge, and thereby granting an interim relief of Rs. 250 crores. The UCC appealed before the Supreme Court against this interim order. A Constitution Bench of the Supreme Court, on 14th February 1989, held that due to the enormity of human suffering occasioned by the Bhopal Gas disaster and the pressing urgency to provide immediate and substantial relief to victims of the disaster there was a need for the overall settlement between the parties covering all litigations, claims, rights and liabilities related to and arising out of the disaster. It therefore ordered the payment of the sum of U.S. Dollars 470 million (which upon immediate payment and with interest over a reasonable period, pending actual distribution amongst the claimants, would aggregate very nearly to 500 million US dollars or its rupee equivalent of approximately Rs. 750/crores) by the UCC on the basis of the offer and the counter offer by the parties. All criminal proceedings related to and arising out of the disaster were also quashed. This settlement order was challenged in the case Union Carbide Corporation v. Union of India (UOI) and Ors. Jana Swasthya Kendra, Bhopal, M.P. Zahreeli Gas Kand Sangharsh Morcha, Bhopal4. The court took into consideration the delay in the judicial proceedings and the provision of relief to the victims, which had resulted in great distress and agony. The court further observed that the compensation amount that was decided was according to the data provided by the plaintiff (Union of India) and so there was no reason to disbelieve it. The court considered the settlement to be just and fair. One major flaw in the judgment was that the court took into consideration only four categories of victims, namely,

i. ii. iii. iv.

cases cases cases cases

of of of of

death, total permanent disability, permanent partial disablement and temporary partial disablement.

No account was taken of the damage caused to the environment, the harmful effects of the gas on future generations and victims whose symptoms were not visible then but they developed complications later on.

Mc Mehta case: Shriram Food and Fertilizers Industry a subsidiary of Delhi Cloth Mills Limited was producing caustic and chlorine. On December 4th and 6th 1985, a major leakage of oleum gas took place from one of the units of Shriram Food and Fertilizers Limited in the heart of the capital city of Delhi which resulted in the death of several persons that one advocate practicing in the Tis Hazari Courts died. The leakage was caused by a series of mechanical and human errors. This leakage resulted from the bursting of the tank containing oleum gas as a result of the collapse of the structure on which it was mounted and it created a scare amongst the people residing in that area. Hardly had the people got out of the shock of this disaster when, within two days, another leakage, though this time a minor one took place as a result of escape of oleum gas from the joints of a pipe. The origin of the national policy on chemical and hazardous industries relates to two major incidents of gas leakage, the Bhopal tragedy in 1994 and the oleum gas leak tragedy in 1995. In these cases the Honble Supreme Court felt that the English doctrine of Strict Liability adopted by the House of Lords in Rayland v. Fletcher would not suffice the changing need of the liability principle in India. So the Honble Supreme Court felt the need of adopting the principle of Absolute Liability or else the Court of law would fail to provide justice to the victims of these large scale environmental disaster. Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently

dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate in the tortious principle of strict liability. The larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise. The principles that came up from this historical case was the Principle of Absolute Liability, secondly the Principle of Polluters Pays, thirdly the Principle of Precautionary Measures, and finally the Principle of Highest Safety Standards came up in this particular case. Again the scope of Art 21 was enlarged the Right to human health and healthy environment was approved, the Right of enjoyment of pollution free water and air for full enjoyment of life as a part of Right to Life was approved. And Right to clean environment was also comprehended as a Right under Art 21 of The Constitution of India. In addition to all these the judgment of M.C.Mehta case gave a new dimension to the Tort Laws in India. Before this case the principle of strict liability was applicable where the defendant could take the plea of defenses, but this ruling of the Supreme Court the Absolute principle came up. Though the Court of Law is always open to hear any kind of injustice done to people and it provides compensation to the victims whose rights are violated or who have suffered loss due to the negligence of others but at this juncture the Honble Court could not provide any compensation to the victims of the oleum gas leake tragedy. The Court could have given an interim compensation to the victims and to the families of those who have died in the course of the disaster. The interim compensation could have helped the victims by way of proper habilitation, providing proper medical facilities and others. Latter the Honble Court has given exemplary compensation to the victims of the oleum gas tragedy and even today the Court is of the view that the compensation that was granted was not enough as compared to the losses suffered. Till date the Honble Court is thinking of providing more compensation to the victims, as people who are living even today in the area where the tragedy took place are suffering a lot, as the oleum gas is still present in the atmosphere. A lot of cases of still born child came up, and the medical report of many showed

that the presence of oleum gas is the reason for those still born child. What ever may it be the situation I hope that the Honble Court will definitely provide the victims with appropriate compensation, as the Honble Court deems fit keeping in mind the principles of Natural Justice.

BIBLOGRAPHY:
1. Environmental Law In India, Second Edition, by P.Leelakrishnal, Lexis Nexis Butterworths,2005. 2. Environmental Law And Policy In India, Second Edition, by Shyam Divan and Armin Rosencranz, Oxford University Press, 2005. 3. Environmental Law, Second Edition, by S.C.Shastri, Eastern Book Company, 2005. 4. Indian Constitutional Law, Fifth Edition, by Prof M.P.Jain, Wadhwa Nagpur, 2007

5.

STANDING from http://www.lectlaw.com/def2/s064.htm

6. Standing (law) From : http://en.wikipedia.org/wiki/Standing_(law) 7. The Legal Concept of Standing from : Posted on September 12, 2009 by NBC http://nativeborncitizen.wordpress.com/2009/09/12/thelegal-concept-of-standing/

8. Standing to sue from : http://www.answers.com/topic/standing-to-sue