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Slide 2 of 39
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Liability for pollution can arise under the common law or pursuant to statute. At one time it was said that "without question tort actions dominate civil litigation in the environmental context". That was true but is no longer the case. Today statutory causes of action are much more important.
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The common law causes of action that are used in a pollution context are nuisance, trespass, negligence and Rylands v Fletcher. Each of these will be considered in turn.
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The common law causes of action proved to be inadequate to deal with modern pollution scenarios. They are reactive rather than proactive. They provide no mechanism to prevent pollution.They simply allocate liabilities, and do so poorly. Virtually the only persons who could make claims for pollution were property owners and even they could only successfully assert a claim if the pollutant was actually deposited on their property. Moreover, the law of damages as it developed at common law severely limited the persons who could make claims. Generally the common law gave no cause of action to persons who suffered purely economic loss. To maintain an action for economic losses a plaintiff had to show personal injury or damage to property.
