Profiling Tort Actions as a Tool to Remedy Environmental Harm in Cameroon
Abstract
Environmental degradation is the prevailing topic in modern discourse. As the trend continues to grow and present a palpable threat to humankind and nature, concerted effort is required to prevent and restore environmental damage as well as compensate victims. Tort law has historically been the principal mechanism for remedying environmental harm through theories such as nuisance, negligence and trespass. Even though the primary objective of tort actions was not directly concerned with improving or preventing environmental conditions, in practice, it remained the exclusive mechanism to resolve certain environmental injuries. The challenges presented by modern complex environmental tort actions necessitated the emergence of regulation. The prevailing idea in mainstream environmental law literature is that ex ante safety regulation is preferable to ex post tort law remedies. Using a doctrinal research methodology, this write-up investigates the role of civil liability in environmental protection, through individual and citizen tort actions. The analysis questions the potential application of tort theories to protect the environment and compensate victims of environmental damage. Findings reveal that tort actions are a necessary catalyst and blend well with regulation to protect the environment, albeit shortcomings.
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References
Ngundem Betaah, A. T., Albrecht, E. & Onang Egute, T., (2019), “The Human Right to a healthy environment in Cameroon: an environmental constitutionalism perspective”, Journal of Environmental law and litigation, Vol. 34:61. P. 64
Wilde, M. L., (1999), “Extending the role of tort as a means of environmental protection: an investigation of recent developments in the law of tort and the European Union”, PhD thesis, University of Brunel. P. 2
Latham, M., Schwartz, V. E. & Appel, C. E., (2011), “The intersection of tort and environmental law: where the twains should meet and depart”, Fordham Law Review, Vol 80, Issue 2. P. 741
Ibid.
This era marks significant environmental law milestones evidenced by the enactment of the first group of modern environmental statutes.
Latham, M., Schwartz, V. E. & Appel, C. E., (2011), Op. Cit., P. 750
Wilde, M. L., (1999), “Extending the role of tort as a means of environmental protection: an investigation of recent developments in the law of tort and the European Union”, Op. Cit., P. 7
Ibid.
Al-Khalaileh, L., et al, (2023), “Legal regulation of civil liability for environmental damage: How appropriate are civil liability provisions and the privacy of environmental damage?”, Journal of Environmental Management and Tourism, Vol. XIV, Iss. 5(69). P. 2175 Available at https://doi.org/10.14505/jemt.
Available at https://afrik21.africa/en/Cameroon-the-environmental-disasters-of-the-tchipou-quarry/
Santiago, A. L. & Jorge Alberto, F. A., (2010), “Environmental civil liability under comparism: some notes in soft law”, Revista Juridica Pielagus, Vol. 9. P. 64. Available at https://www.redalyc.org/articulo.oa?id=587977786006
Shapo, M. S., (1997), “Tort law and Environmental risk”, Pace Environmental Law Review, Vol. 14, Issue 2. Available at https://digitalcommons.pace.edu/pelr/vol14/iss2/4. P. 531
Ibid.
Tolosa, P. C. (2008), “Advantages and restrictions of tort law to deal with environmental damages”, Revue générale de droit, Vol. 38, Number 1. https://doi.org/10.7202/1027047ar p. 111
Shapo, M. S., (1997), “Tort law and Environmental risk”, Op. Cit. p. 531
Latham, M., Schwartz, V. E. & Appel, C. E., (2011), Op. Cit., P. 746
Ibid.
Shapo, M. S., (1997), “Tort law and Environmental risk”, Op. Cit. P. 532
Latham, M., Schwartz, V. E. & Appel, C. E., (2011), Op. Cit., P. 751
Wilde, M. L., (1999), Op. Cit., P. 21
Ibid.
Fraley, J. M., (2018) “Liability for Unintentional Nuisances: How the Restatement of Torts Almost Negligently killed the Right to Exclude in Property Law”, West Virginia Law Review, Vol. 121, P. 17
Ibid., P. 22
According to prosser, “there is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance’. It has meant all things to all men…..”. See Prosser, L. W., (1971), Handbook of the law of Torts, 4th Edition, West Publishing Co., St. Paul. P. 571
Latham, M., Schwartz, V. E. & Appel, C. E., (2011), Op. Cit., P. 752
Dewees, D. N., (1992), “The comparative efficacy of tort law and regulation for environmental protection”, The Geneva papers on Risk and Insurance 17, No. 65. P. 449
Ibid.
Morton V. Wheeler (1956) CA 31
Schwartz, V. E. & Goldberg, P. (2006), “The Law of Public Nuisance: Maintaining Rational Boundaries on a Rational Tort”, Washburn Law Journal. P. 543 The king could bring a suit to stop the infringement and force the offending party to repair any damage to the king’s property.
Kendrick, L. “The Perils of Public Nuisance”. available at https://www.yalelawjournal.org. P. 13
Schwartz, V. E. & Goldberg, P. (2006), Op. Cit.
Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following
(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace the public comfort or convenience or
(b) Whether the conduct is proscribed by a Statute, ordinance or administrative regulation, or
(c) Whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.
Jacobson, J. D. & Herbig, R. S. (2009), “Public Nuisance Law: Resistance to Expansive New Theories” Mass Torts, Vol. 8 No. 1, The American Bar Association.
1 S. C. R. 201
Mcnally, W. E., Cotton, B. & Fischer, P., “Is the Tort of Public Nuisance still a useful Tool for the Plaintiffs’ Personal Injury Bar?” P. 3
Ibid.
These factors include: the degree of inconvenience caused by the activity, the utility of the activity to the public, the character of the neighbourhood amongst others
In Cameroon this will be the State Counsel suing parens patriae literally translated to mean “parent of the nation”, on behalf of the people of a jurisdiction for an infringement on public rights by a private actor.
In other words, the private party must have suffered an injury distinct in kind and more severe than that suffered by the general public.
Dana, D. A., “Public Nuisance Law when Politics Fails”, P. 69
Kendrick, L. “The Perils of Public Nuisance”, Op. Cit. P. 13
Public Nuisance included interference with the public health as in the case of keeping diseased animals; maintenance of a pond breeding mosquitoes; with the public safety as in the case of storage of explosives in the midst of a city or the shooting of fireworks in the public streets; with public peace as by loud and disturbing noises; with public morals, as in the case of running houses of prostitution or indecent exhibitions; with public comfort as in the case of widely disseminated bad odors, dust and smoke; with the public convenience as by the obstruction of a public highway or a navigable stream etc
Kendrick, L., Op. Cit., P. 17
Schwartz, V. E. & Goldberg, P. (2006), Op. Cit., P. 544
Bryson, J. E. & Macbeth, A., (1972) “Public Nuisance, the Restatement (Second) of Torts, and Environmental Law”, Ecology Law Quarterly, Vol 2, No. 2. P. 245
Ibid.,
Antolini, D. E., (2001), “Modernizing Public Nuisance: Solving the Paradox of the Special Injury Rule”, 28 ECOLOGY L. R., P. 755
Kendrick, L., Op. Cit., P. 21
Faulk, R. O., (2010), “Uncommon Law: Ruminations on Public Nuisance”, MO. ENVTL. L & POL’Y REV., VOL. 18, NO. 1. P. 2
Kendrick, L., Op. Cit., P. 23
Article 8(2), Law No. 96/12 of 05 August 1996 Relating to Environmental Management.
In countries like the USA, public nuisance has been used as the cause of action against manufacturers
Latham, M., Schwartz, V. E. & Appel, C. E., (2011), “The Intersection of Tort and Environmental Law: where the twains should Meet and Depart”, Fordham Law Review, Vol. 80, Issue 2. P. 737. Available at https://ir.lawnet.fordham.edu/flr/vol80/iss2/12.
Being a former colony of Britain, Common law remains a source of law in the English-speaking regions of Cameroon.
Law No. 2016/007 of 12 July 2016 relating to the Penal Code, Section 230 punishes obstruction of the public highway, section 229 punishes infringement of regulations relating to the discard of toxic waste and explosive substances. Coupled with a host of other laws on environmental protection. These offences are all classified as misdemeanours and simple offenses
McRae Jr., W. A., (2021), “The Development of Nuisance in the Early Common Law”, Florida Law Review, vol. 1, Issue 1, Article 2. P. 11. Available at https://scholarship.law.dfl.edu/flr/vol1/iss1/2.
Dewees, D. N., (1992), Op. Cit., P. 450
Shapo, M. S., (1997), “Tort law and Environmental risk”, Op. Cit. P. 541
Dewees, D. N., (1992), Op. Cit.
Ibid.
L. R. – H. L. 330 (1868)
Shapo, M. S., (1997), Op. Cit. P. 533
Character of the neighbourhood in torts refers to what might reasonably be expected of a particular area or locality. So, whilst it would be unreasonable for a factory to cause a lot of noise in the middle of an idyllic countryside or residential area, the same noise would likely be found reasonable in an industrial setup. Thus, the relative amplitude of a nuisance depends on its context-Sturges v. Bridgeman (1879) 11 Ch D 852
Wilde, M. L., (1999), Op. Cit., P. 33
Whether the defendants conduct is reasonable will be judged depending on the circumstances of the case and what a reasonable man will have in contemplation. The reasonable man here is determined by an objective test-Blyth v. Birmingham Waterworks Co. (1856) 11 Ex 781, the reasonable man should be in a position to foresee that damage would be caused to the third party by his failure to act with due care
In Donoghue v. Stevenson [1932] A. C. 562, Lord Atkin formulated his famous proximity test to assist with determining foreseeable victims, he said “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. who, then, in the law is your neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”.
Latham, M., Schwartz, V. E. & Appel, C. E., (2011), Op. Cit., P. 752
Case No. 0016/PV/MINEP/DPEF/SPE of 20th June 2004 (unreported)
Wilde, M. L., (1999), Op. Cit., P. 38
Shapo, M. S., (1997), Op. Cit. P. 533
Santiago, A. L. & Jorge Alberto, F. A., (2010), “Environmental civil liability under comparism: some notes in soft law”, Revista Juridica Pielagus, Vol. 9. P. 63. Available at https://www.redalyc.org/articulo.oa?id=587977786006.
Dewees, D. N., (1992), Op. Cit., P. 448
Santiago, A. L. & Jorge Alberto, F. A., (2010), Op. Cit.
The primary conduct resulting in the harm is directed to the environment through release or dumping of harmful substances on the environment which in turn causes harm to individuals or their property.
Santiago, A. L. & Jorge Alberto, F. A., (2010), Op. Cit., P. 64
Santiago, A. L. & Jorge Alberto, F. A., (2010), Op. Cit., P. 64
Tolosa, P. M., (2008), “Advantages and restrictions of tort law to deal with environmental damages”, Revue générale de droit, Vol. 38, Number 1. P. 124
Wilde, M. L., (1999), Op. Cit., P. 105
Latham, M., Schwartz, V. E. & Appel, C. E., (2011), Op. Cit., P. 755
Matter No. 0/65/MINEF/SG/Spe/DNIE/PEIE/C4 (unreported)
Wilde, M. L., (1999), Op. Cit., P. 107
At common law, the plaintiff, in order to establish his case must prove on a balance of probabilities that a specific factor or factors caused by the defendant resulted in his injury. This is not always so easy in environmental damage cases: the plaintiff may be faced with the difficulty of identifying the specific cause of his injury maybe because of lack of sufficient scientific data or the latent and long-distance pollution may make the establishment of a causal link illusory.
Santiago, A. L. & Jorge Alberto, F. A., (2010), “Environmental civil liability under comparism: some notes in soft law”, Revista Juridica Pielagus, Vol. 9. P. 62. Available at https://www.redalyc.org/articulo.oa?id=587977786006.
Santiago, A. L. & Jorge Alberto, F. A., (2010), Op. Cit., P. 72
Hayajneh, A. Z., (2004), “Civil Liability for environmental damage: A comparative study between Jordanian and English legal systems”, PhD thesis, University of Newcastle upon Tyne, P. 40
Santiago, A. L. & Jorge Alberto, F. A., (2010), Op. Cit., P. 71
Garner,B. A., (Ed.) (2009) Black’s Law Dictionary, West Publishing Co, P. 997
Santiago, A. L. & Jorge Alberto, F. A., (2010), Op. Cit.,
The “polluter pay principle” simply means that whoever is responsible for damage to the environment should bear the cost associated with it. First set out by the OECD Council Recommendations, it has since been upheld and reiterated by the Rio Declaration and the 1996 environmental management law in article 9 (c), whereby, charges resulting from measures aimed at preventing, reducing and fighting pollution and the rehabilitation of polluted areas shall be borne by the polluter.
Wilde, M. L., (1999), Op. Cit., P. 157
Garner,B. A., (Ed.) (2009) Op. Cit., P. 998
Hayajneh, A. Z., (2004), Op. Cit., P. 40
(1995), “Study of civil liability systems for remedying environmental damage”, Final Report. McKENNA & Co., available online at http://europa.eu.int/comm/environment/liability/civilliability_finalreport.pdf.
Wilde, M. L., (1999), Op. Cit.
The injury suffered by the plaintiff or the environmental damage could be the result of interaction between or amongst several defendant’s activities which renders the identification of the specific source of the release almost impossible and even where possible, costly and time-consuming. Thus, without the imposition of a strict liability regime, the plaintiff will most definitely go without compensation.
Hayajneh, A. Z., (2004), Op. Cit., P. 41
Wilde, M. L., (1999), Op. Cit., P. 156
Hayajneh, A. Z., (2004), Op. Cit., P. 42
Santiago, A. L. & Jorge Alberto, F. A., (2010), Op. Cit., P. 73
This principle is an important environmental policy tool because it complies with the concept of fairness and because it provides a strong incentive for individuals and industries alike to change unsound environmental patterns and reduce pollution generally.
Hayajneh, A. Z., (2004), Op. Cit., P. 44
Article 9 (d) of the Law No. 96/12 of 5th August 1996, Relating to Environmental Management.
United Nations Resolution No 1994/15
Garner, B. A. (ed) (2004), Black’s Law Dictionary, USA, West Publishing Co, 9th edition, P. 1537
Santiago, A. L. & Jorge Alberto, F. A., (2010), Op. Cit., P. 79
Bryson, J. E. & Macbeth, A., (1972), “Public Nuisance, the Restatement (second) of Torts, and Environmental Law”, Op. Cit., P. 252
Rothstein, M. A., (1974), “Private Actions for public nuisance: The standing problem”, West Virginia Law Review, Vol.76, Iss.4. P.6. available at https://researchrepository.wvu.edu/wvlr/vol76/iss4/4.
Kendrick, L. ( ), Op. Cit., P. 15
This is the condition for the conferral of standing to private individuals in public nuisance claims. Special injury is synonymous to personal injury as opposed to public injury. Again, special injury would involve not only physical injury to the person or property, but also economic loss.
Rothstein, M. A., (1974), Op. Cit., P. 4.
This is a lawsuit in which the court authorizes a single person or a small group of people to represent the interests of a larger group
Suit Number MUM/27M/08 (unreported)
The Supreme Court of Cameroon in the case of Isaac Fadu & 14 Others v. Samuel Yaro & 10 Others, Arret No. 79/CC of 17th September 1990, held that according to Order 4 Rule 3 of the Supreme Court Civil Procedure Rules, there are conditions to be fulfilled before a suit in representative capacity can be entertained: the parties must have the same interest; the court must make an order authorizing those seeking to represent to institute the action and the other parties to be represented must give their written consent.
Merrill, T. W., (2011), Op. Cit., P. 15
Preston, B. J. (2013), "Environmental Public Interest litigation: Conditions for success", paper presented at the International Symposium: Towards an Effective guarantee of the Green Access: Japan’s achievements and critical points from a global perspective, 30-31 March 2013, Awaji Island, Japan,
Van Geel, O., (2017), “Urgenda and Beyond: The past, present and future of climate change public interest litigation”, Maastrich University Journal of Sustainability studies. P. 57.
Definition proffered in the case of Foundation for environment and development (FEDEV) VS. China road and bridge corporation CFIB/004m/09
Chu, J., (2019), “Vindicating public environmental interest: defining the role of environmental public interest litigation in China”, Ecology Law Quarterly, Vol. 45, Iss. 3. P. 491. Available at https://scholarship.law.berkeley.edu/elq.
This means that the job of abating environmental nuisance has been given to a specific public agency and private actions are only possible when the duly constituted public agency has failed to act or has expressly approved of the private suit. A private citizen can only obtain standing however after a complaint has been filed with the Attorney General and he has failed to bring an action within a given period of time.
Chu, J., (2019), Op. Cit.
Locus standi consists of two elements: capacity to sue and a sufficient interest in the matter at hand.
Preston, B. J., (2013) Op. Cit., P. 14
Faure, M. G. & Raja, A. V., (2010), “Effectiveness of environmental public interest litigation in India: Determining the key variables”, Fordham Environmental Law Review, Vol. 21, Number 2. P. 250. Available at http://ir.lawnet.fordham.edu/elr
Estey, W., (1972), “Public nuisance and standing to sue”, Osgoode Hall Law Journal, vol. 10, number 3, P. 564 available at http://digitalcommons.osgoode.yorku.ca/ohlj.
CFIB/004M/09 (unreported)
Law No 96/6 of 18th January 1996 to amend the Constitution of 2nd June 1972.
Article 24 of the African Charter on Human and Peoples’ Rights (Banjul Charter), adopted on June 27, 1981, was ratified by Cameroon on the 20th of June 1989. provides that all peoples shall have a right to a general satisfactory environment favourable to their development……furthermore, article 12(1)(2) of the International Convention on Economic, Social and cultural rights ratified by Cameroon on the 27th of June 1984, provides for the improvement of all aspects of environmental and industrial hygiene.
Section 2 (2) of Law No. 96/12 of 15 August 1996 Relating to Environmental management in Cameroon.
CFIBa/245CM/02-03 (unreported)
Estey, W., (1972), P. 565
The right to a healthy environment and the right to development are often classified as third generation rights and are often protected only through the lenses of first- and second-generation rights. First generation human rights are civil and political rights that protect individuals from the state’s arbitrary actions they include freedom of speech and religion; second generation human rights are social and economic rights that promote equality such as the right to education, healthcare, work and social security; finally, third generation rights also called ‘solidarity rights’, involves the entire human community such as environmental health, cultural self-determination, solidarity and peace. Third generation human rights are reflected in General Assembly Declarations. The classification of human rights into generations is based on international legal instruments adopted by the United Nations since the Universal Declaration of Human Rights in 1948.
African Charter on Human and Peoples’ Rights, Op. Cit.
Law No. 96/12 of the 5th of August 1996, relating to environmental management, article 8 (2)
CFIF/O/M/02-03 (unreported)
Chu, J., (2019), Op. Cit., P. 518
Faure, M. G. & Raja, A. V., (2010), Op. Cit., P. 255
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