Recent researching
In the field of environmental law in Vietnam, research has primarily examined its academic and social dimensions While some scholars advocate for regulatory changes and enhanced penalties as solutions to environmental protection, others argue that tort litigation offers additional avenues Among these, the economic tort theory stands out This thesis delves into the analysis of the economic tort theory to propose effective risk management strategies for businesses in the context of environmental torts.
3 Purpose, methodology and scope of researching
The thesis uses theoretical research methods, normative analysis methods, historical methods, comparative jurisprudence methods, and synthetic methods to solve problems in the most reasonable and clear way
This graduation thesis researches into the environmental tort at the academic aspect and legal practicing aspect From the theorical aspect, this paper firstly analyzes general elements of tort liability and noticeable or special characteristics of environmental tort liability Other tort characteristics is only analyzed briefly and not considered the most important part of this paper Next, this thesis introduces general economic tort theories and the relationship of these economic theories in finding the liability of defendants Thỉdyly, from the practical aspect, after reviewing Vietnamese regulation and legal practices, this paper compares the Vietnamese legal system to the
US environmental tort regulations by analyzing 2 US verdicts to suggest some changes in Vietnamese tort regulations
The most important part of this graduation thesis is the environmental tort risk to company and the way to manage it effectively Since the cost of environmental tort litigation is very high, reducing the risk would be preferable to finding the method to tackle the issue when it happened The following suggested risk management methods would be based mainly on economic tort theories that is mentioned in the secound chapter
This thesis comprises of 4 parts, not including the introduction , which are: Chapter 1: Torts in Theories
Chapter 2: The Theory of Environmental Pollution Liability
Chapter 3: Vietnamese Law in Environmental Pollution Tort Liability
Chapter 4: Comparative Law in the U.S Legal System Through Case Studies and Proposal Sollutions
Tort law 1 is not only a common and universal legal term but also a complex legal area that has various types of itself Since Tort law adjusts the non-contractual breaching duty of a person who harms another’s right, Tort law is based on various legal theories which could easily be changed to adjust with the reality of cases In addition, law researchers in Common Law and Civil Law systems have a different view of the point about Tort law which classifies Tort law into much more types of itself Most law researchers agree that Tort law is based on 3 or 4 elements which are Illegal act, damage/injury, causation, and in some type of Tort, Fault is the final compulsory element Based on these elements, Tort law in the Common law system can be divided into Trespass, Nuisance, Negligence, …
Environmental Tort law, which could be called Toxic Tort Law, is broad, complex, and overlapping Toxic tort law has unique characteristic and difficulties which make it harder to litigation and win than usual cases In addition, to show cause in toxic tort cause might usually be the most difficult part which is money and time costly
Within this chapter, in the purpose of making clear about the foundational theory which most nearly related to the toxic tort law, I would take into consideration the tort theories of the Common law system, particularly the US legal system In addition, toxic tort law in this paper would only be referred to the personal physical injury due to exposure to toxic
1.1 The Concept of Tort Liability
A tort is a classy and popular definition that is used commonly over the world
It is hard to define exactly what “tort” is The term “tort” was firstly invented by French lawmakers A tort can be defined as any legally wrongful act which violates rights protected by law 2 This act is not only different from breaching contract
1 In each legal system, the term “tort” might be changed into other terms, although they are all in the same meaning, so, in this thesis I would only use the term “tort” for only
2 Rachael Mulheron, Principles of Tort Law, 4th edn (Cambridge University Press, 2020)
Tort law is a collection of legal rights that an individual (B) holds when they have been harmed by another person's (A) wrongful actions In the absence of a contract, if A's conduct violates B's legal rights, B can bring a lawsuit against A for the harmful behavior, seeking compensation for the damages caused.
A This point of view which is based mainly on economic tort law theories would make clear the loss of B Both the classical and modern viewpoints present that the tort focuses mainly on the wrong act of the injurer which may harm the legal right of another 4
Tort law aims to provide compensation for harm caused by unlawful actions without a direct contractual relationship It assists in upholding contractual obligations and preventing breaches Contract law focuses on mutual commitments and addresses breaches of promise through consideration Tort law plays a crucial role in promoting justice by providing legal remedies for harms not addressed by other legal systems.
To make clear the definition of tort law, the history of the tort law should be taken into consideration shortly Tort law is not a strange definition in our society which has a long and complex history Babylon’s government-regulated that “An eye for an eye and a tooth for a tooth” Based on the Exodus, this point of view was also mentioned in the no 21:22-25:
3 Winand Emons, ‘An Introduction to the Legal and Economic Theories of Torts’, 129.1985 (1993), 625–42
4 Henry E Smith, ‘Modularity and Morality in the Law of Torts’, Journal of Tort Law, 4.2 (2011)
7 Allan Beever, ‘What Does Tort Law Protect ?’, Singapore Academy of Law Journal, 626.27 (2015), 626–42
In cases of assault resulting in premature birth, if no severe injuries occur, the offender must pay a fine determined by the victim's husband and approved by the court However, if serious injuries are sustained, the punishment under the principle of retaliation (lex talionis) dictates "life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise." This principle emphasizes proportional restitution for harm caused.
This point of view could be known as the original form of the tort law since both the state and religion, which played the most important role in history, allowed individuals to revenge on the person who harmed the injured person In the 19 th BC, the term “tort” became much more popular, then in the next century, it remarkably expanded in the field of compensation for unintentional injury When a person commits legal unlawful conduct or breaches a legal duty, the breach is redressable through an action for unliquidated damages, law would provide a remedy 8
Through the evolution of "tort law," two major legal systems in the world, the Civil law system, and the Common law system established two distinct tort law based- theories Tort Law in the civil law system, particularly French law, is founded on the distribution justice theory 9 Since the French believe that the main purpose of tort law is to recover justice which is mainly a moral term, when a person violates another’s right, they also violate the justice system 10 Therefore, they have a duty on adjusting and reconstruct this unfairness On the other hand, the corrective justice theory is the foundation of the tort law in the Common law system The contribution justice pays attention to the damages of the victim in the tort relationship which mainly focuses on a method to reduce and recover harm of victim though require the wrongdoer pay damages to the victim 11 However, classical tort law view of the point both legal systems based on 4 elements which are: (1) Illegal act, (2) Damage, (3) Causation, and (4) Fault
9 Nguyen Thi Minh Hieu, ‘Boi Thuong Thiet Hai Ngoai Hop Dong Trong Bo Luat Dan Su va Yeu to Loi’ (Đại học Quốc gia Hà Nội, 2019)
11 Nguyễn Huy Tử Quân, ‘Quan He Nhan qua Trong Luat Boi Thuong Thiet Hai Ngoai Hop Dong’ (Đại học Quốc gia Hà Nội, 2019)
To clearly explain the 4 elements of tort law, the below map would be used to illustrate types of tort law:
Thesis structure
This thesis comprises of 4 parts, not including the introduction , which are: Chapter 1: Torts in Theories
Chapter 2: The Theory of Environmental Pollution Liability
Chapter 3: Vietnamese Law in Environmental Pollution Tort Liability
Chapter 4: Comparative Law in the U.S Legal System Through Case Studies and Proposal Sollutions
TORTS IN THEORIES
The Concept of Tort Liability
A tort is a classy and popular definition that is used commonly over the world
The term "tort" originates from French law and embodies a legally wrongful act that infringes upon rights safeguarded by the law Unlike contractual breaches, torts are characterized by their independent nature and the absence of a contractual obligation Understanding the concept of torts is essential for legal professionals and individuals alike, as it provides a framework for understanding and addressing legal wrongs.
1 In each legal system, the term “tort” might be changed into other terms, although they are all in the same meaning, so, in this thesis I would only use the term “tort” for only
2 Rachael Mulheron, Principles of Tort Law, 4th edn (Cambridge University Press, 2020)
behavior but also might be brought a lawsuit against a wrongful behavior person 3 In another word, without a contract, if A has an act that harms a legally right of B, the victim, could sue A for that wrongful behavior In modern research, researchers believe that tort law is a set of right that B hold when B is harmed by a wrongful act of
A This point of view which is based mainly on economic tort law theories would make clear the loss of B Both the classical and modern viewpoints present that the tort focuses mainly on the wrong act of the injurer which may harm the legal right of another 4
According to the conventional definition, the major goal of tort law is to separate tort law from other laws such as contract law, criminal law, and so on The first goal of tort law is to recompense the victim for the harm incurred as a result of the unlawful behavior of violated person There is no contractual link between the violation and the victim, or there is a little relationship that is not as close as a contractual tie 5 Up to now, the difference between contract law and tort law which has been made clear through the relationship of parties is being blurred Another essential aim of tort law is to support and enforce contractual obligations, as well as to prevent contract violations The contract then has no trouble adjusting for errors of omission 6 The idea of consideration, which is founded on mutual commitments, is crucial in contract law, and failure through omission to follow the conditions of a promise is a breach of contract that the law will attempt to rectify 7 In addition, tort law is a useful way to protect justice which is an utmost important role of the legal system
To make clear the definition of tort law, the history of the tort law should be taken into consideration shortly Tort law is not a strange definition in our society which has a long and complex history Babylon’s government-regulated that “An eye for an eye and a tooth for a tooth” Based on the Exodus, this point of view was also mentioned in the no 21:22-25:
3 Winand Emons, ‘An Introduction to the Legal and Economic Theories of Torts’, 129.1985 (1993), 625–42
4 Henry E Smith, ‘Modularity and Morality in the Law of Torts’, Journal of Tort Law, 4.2 (2011)
7 Allan Beever, ‘What Does Tort Law Protect ?’, Singapore Academy of Law Journal, 626.27 (2015), 626–42
“If people are fighting and hit a pregnant woman and she gives birth prematurely but there is no serious injury, the offender must be fined whatever the woman’s husband demands and the court allows 23 But if there is serious injury, you are to take life for life, 24 eyes for an eye, tooth for tooth, hand for hand, foot for foot, 25 burns for burn, wound for wound, bruise for bruise”
This point of view could be known as the original form of the tort law since both the state and religion, which played the most important role in history, allowed individuals to revenge on the person who harmed the injured person In the 19 th BC, the term “tort” became much more popular, then in the next century, it remarkably expanded in the field of compensation for unintentional injury When a person commits legal unlawful conduct or breaches a legal duty, the breach is redressable through an action for unliquidated damages, law would provide a remedy 8
Elements of Tort Liability
Through the evolution of "tort law," two major legal systems in the world, the Civil law system, and the Common law system established two distinct tort law based- theories Tort Law in the civil law system, particularly French law, is founded on the distribution justice theory 9 Since the French believe that the main purpose of tort law is to recover justice which is mainly a moral term, when a person violates another’s right, they also violate the justice system 10 Therefore, they have a duty on adjusting and reconstruct this unfairness On the other hand, the corrective justice theory is the foundation of the tort law in the Common law system The contribution justice pays attention to the damages of the victim in the tort relationship which mainly focuses on a method to reduce and recover harm of victim though require the wrongdoer pay damages to the victim 11 However, classical tort law view of the point both legal systems based on 4 elements which are: (1) Illegal act, (2) Damage, (3) Causation, and (4) Fault
9 Nguyen Thi Minh Hieu, ‘Boi Thuong Thiet Hai Ngoai Hop Dong Trong Bo Luat Dan Su va Yeu to Loi’ (Đại học Quốc gia Hà Nội, 2019)
11 Nguyễn Huy Tử Quân, ‘Quan He Nhan qua Trong Luat Boi Thuong Thiet Hai Ngoai Hop Dong’ (Đại học Quốc gia Hà Nội, 2019)
To clearly explain the 4 elements of tort law, the below map would be used to illustrate types of tort law:
As above-mentioned, the first element of tort law is the breach of a legal duty of one party with the duty-owned party Since the tort law is heavily based on the wrongful act, Illegal act has to be presented clearly to claim tort A wrongdoer who can be known as a “tortfeasor” in the legal field has a duty on compensating the victim and paying damages and/or being punished for his breaching duty behavior
However, not all breaching duty behavior would be in the scope of tort law To determine which wrong is the tort, the court would mainly based on the duty of care
Anyone who can prove damage caused by the escapee
Any members of the public who can prove special damage
Usually person with proprietary interest in land affected
Anyone who can prove breach of duty damage
Person in control of non- natural user on land, usually landowner
The perpetrator The creator or adaptor Person committing act of trespass
Directness Direct or Indirect Direct or
Indirect Only indirect act Direct Direct or
Fault No need to prove Must be proved
Strict liability -> Not to prove
Must prove breaching of standard of care
Only to people with a proprietary interest in land affected
Economic loss Probably not Possibly Must prove Yes but no need to prove Yes that in a particular scenario which basically include 3 following elements, (1) the tortfeasor could foresee that his action might injure others, (2) the proximity relationship between tortfeasor and victim, (3) fair and reasonable when the injurer has a duty of care 12 Although, not all cases, in reality, require all 3 above-mentioned elements to reach the duty of care Then, when an injurer has a duty of care, the legal issue is to find out the standard of care which is based on legal standards or practices, customary, moral values of society 13 The main element in considering the Illegal act is tort or not is this reasonable element This can be called “the reasonable man test” which would show at the same time and location of the injuring scenario, the reasonable person, in this case, would act as the injurer or not? This is why many people feel tort law is quite flexible To summarize, an action is a tort when the injurer could reasonably anticipate that the victim would be damaged as a result of the action, and no one who has a close relationship with the victim as the injurer would act as the injurer did However, in practice, the court in each instance would have a distinct and flexible manner to determine the Illegal act that accords to these three criteria because not all Illegal acts achieve all three characteristics, but they have still been deemed a tort
Only after the victim is damaged may they file a tort suit, according to tort law
In this scenario, the harm covers both property and human damages Tort law's multiple categories of harm make it exceedingly complicated, with different types having particular features in each pillar Property damages include both tangible and intangible property Individuals' physical health, mental health, and personal rights would be protected by tort law in the case of personal damages
Furthermore, harm is a required pillar in tort law since, in the absence of tort law, the infringement may fall under morals In production responsibility tort, for example, if a product has unmentioned substances that lead a customer to sue after consuming it, the case falls under tort law However, if this product does not cause this
13 Emons consumer to become allergic, the client may not be aware that it contains unspecified components Even the consumer is aware that he or she cannot file a tort claim because they have not yet incurred any injury as a result of this merchandise The production in this scenario may only violate business morality, which is within the scope of business, because the company did not follow the conscience as a producer, so the reputation of this producer may be significantly diminished, resulting in financial loss when customers refuse to use this product
In this day and age, harm in tort suits is not only present harm which could be determined and recognized at the litigation period Tort damage might also be future harm which cannot be determined at the present 14 Future harm is related much to risks which may be considered as an economical term Future harm is intangible harm Future harm is definably hard in determining the value of itself since it will not have been inflicted on victims yet Future harm includes, for example, future financial loss, future profits, personal damages, …
Due to the fact that one damage might be caused by various illegal acts, causation of tort might define the fair and reasonable tortfeasor There are 2 types of causation which are cause-in-fact and proximate cause 15 Put simply, “causation-in- fact” is the cause of the victim's injuries or losses However, the “causation-in-fact” may not be the legal cause In a personal injury case, the individual who caused the harm may not be the accountable party Proximate cause, on the other hand, is the legal cause of damage that establishes legal liability Proximate cause may not be the last event that occurred before an injury occurred, nor may it be the initial event that triggered a chain reaction Instead, it is the cause that resulted in a predictable reaction, and without which the damage or harm in issue would not have occurred
To the cause-in-fact, judges would use the “but-for” test which claims that if not for the action, would the harm have occurred? When the answer is no which takes a higher proportion than the yes answer, the action shall not be a cause-in-fact of the
14 Alex Long, Torts : A Modern Approach, Carolina Academic Press (Carolina Academic Press, 2020)
15 Quân damage This test would be used to predict and explain natural and simple causation When using this “but-for” test, researchers have divided cause-in-fact into 2 causations which are general causation and specific causation, especially in production liability tort or toxic tort
In order to discover the causual cause, general causation would look for causality between fairly similar productions General causation demands proof that the chemical is capable of causing the sort of injury that the plaintiff experienced 16 It is most usually demonstrated by epidemiological studies proving a causal connection between the chemical in consideration and the specific sickness or harm in the issue While specific causality would demonstrate specific causation in that circumstance only Specific causation necessitates proof that the injury claimed by the specific plaintiff was caused by the exposure attributed to the defendant It requires a specific examination of the plaintiff's claim, including the nature of the exposure, the nature of the plaintiff's alleged injury, and other plausible sources of that harm 17
Second, in circumstances where compensation is required for harm, it must be a proximate cause Action is in proximate causation if it meets all three of the above- mentioned tort action elements: (1) foreseeable, (2) proximity, and (3) reasonable This proximate causation would be presented if a reasonable man in the same circumstance could foresee the damage that has a close relationship with the action and the action could be highly considered as a direct cause of the damage, then the causation between damage and action would be in proximate causation
Under tort law, there are three forms of fault: (1) strict liability, (2) gross negligence, and (3) purpose The fault would be necessary as an obligatory element or not depending on the kind of tort law and the circumstances To begin with, strict liability claims do not necessitate any negligence Because strict liability is predicated
16 Judge Jack, B Weinstein Nov, and Margaret A Berger, ‘Eliminating General Causation : Notes towards a New Theory of Justice and Toxic Torts’, Columbia Law Review, 97.7 (1997), 2117–52
17 ‘CAUSATION IN ENVIRONMENTAL LAW: LESSONS FROM TOXIC TORTS’, Harvard Law
Review, 128.8 (2015), 2256–77 on a risky activity as opposed to a wrongful act, it does not need blame or causation 18 Second, negligence is a tort action based on the duty of care doctrines that include unintentional blame In these circumstances, the injurer had a duty of care and/or responsibility to rescue the victim, and when the injurer breached his obligation, he committed a tort As a result, even if they do not wish the victim to suffer as a result of the injury, they are nonetheless negligent Finally, the injurer has an intent fault if he intentionally brings a tort case 19
THE THEORY OF ENVIRONMENTAL POLLUTION
Economic Tort Theories in clarifying tortfeasor and causation
There are certain missing and ambiguous in proving causation in tort suits that have not been resolved by traditional theories Furthermore, tort litigation is currently so complicated that traditional theories cannot keep up On the other hand, Economic theories continue to recognize and support the benefits of classical theories, which serve as the cornerstone of tort law In ancient tort law ideas, economic theories implied hard and ambiguous features, particularly in determining reasonable and fair damages
Firstly, the economic tort theories of Judge Guido Calabresi - who is one of the very first researchers to develop a framework of an economic tort, would help find out who has tort duty, especially in complex tort lawsuits where causation is partially uncertain through wondering the reason of Illegal act Based on the Guido Calabresi theory, he claimed that:
“The loss bearer who can enter into transactions cheapest must be chosen with all cost elements involved in entering into a transaction in mind, and those include not only the bost obvious transaction cist, but also the cost of risk, information, and even coercion where it is the cheapest divide available” 26
This theory of Calabresi would explain who and how a wrongdoer has tort liability by pointing out the cheapest cost avoider In Calabresi’s theory, there are 3 types of tort cost 27 The first cost is that the number of accidents should be decreased Since the tort law's aim is not for punishing as criminal law, tort law damages are for the purpose of paying back to the victim When the number of tort accidents reduces, the sum of tort damages would be declined Due to the decline in the number of accidents, the social cost which is the second cost would be changed The final one is an administrative expense, which is utilized for accident care Therefore, based on the
27 Guido Calabresi, ‘Changes for Automobile Claims: Views and Overviews’, University of Illinois Law
Forum, 1967 (1967), 600–611 economic theories, the cheapest cost avoider who has the best position and benefit in doing the action would be the tortfeasor 28
When making business decisions, companies prioritize maximizing financial gain By evaluating options that adhere to regulations or deviate from them, businesses aim to determine the course of action that yields the highest returns A cornerstone of business strategy involves minimizing expenses to optimize profitability, recognizing that increased profits go hand in hand with reduced costs.
Due to easily showing the cheapest cost avoider of the liability tortfeasor, this theory is usually used in the negligence tort lawsuit 29 Since in negligence tort, the intentional fault is not required, the defender must show “breach of duty”, “duty of care” and “consequential damage” 30 When applying Calabresi's economic theory, especially when all wrongdoers have a duty of care and they broke their obligation, which is not the same amongst them, the court will condemn who is the lowest cost avoider, and that avoider is the tortfeasor in this case Finding the least cost avoider would be unneeded in an intentional fault tort claim since the party who has intention blame is evident It is the same in strict liability litigation when the parties' obligation is roughly excused
Therefore, this theory suggest the entrepreneur’s liability on their product When selling the sold product of enterprise mostly include “the added cost” which include risk value is a part of extra value than the net value of products He concluded that “even with backward and forward shifting, some of the loss will not be shifted and will remain on the enterprise” 31
Secondly, to understand the causation and fault, Richard Posner and Ronald Coase offered a theory to examine the efficiency of investment in the care of parties 32
28 Ronen Perry, ‘The Economic Bias in Tort Law’, University of Illinois Law Review, 1573.5 (2008), 1573–1622
29 Guido Calabresi, ‘Some Thoughts on Risk Distribution and the Law of Torts’, The Yale Law Journal, 70.4 (1961), 499
31 Calabresi, ‘Some Thoughts on Risk Distribution and the Law of Torts’
32 Richard A Posner, ‘Observation The Economic Approach to Law’, Texas Law Review, 53 (1974)
The Coase theory is that preventing person A from doing anything that might injure person B would have the consequence of allowing B to inflict harm on A 33 So, in these instances, the right concept to use is that of avoiding greater harm, which equates to making the option that maximizes the net economic worth of the resources used In this way, if a party could have invested in measures to effectively prevent the damage, that party would not be held liable in tort 34 Coase concluded in his research that:
“…it is clear that if the cattle-raiser is liable for damage caused and the pricing system works smoothly, the reduction in the value of production elsewhere will be taken into account in computing the additional cost involved in increasing the size of the herd This cost will be weighed against the value of the additional meat production and, given perfect competition in the cattle industry, the allocation of resources in cattle-raising will be optimal ”
Through the development of a new test, this hypothesis has clarified the standard of care Injurer would be checked at the efficiency feature which is the basis of Posner’s theory 35 by utilizing reasonable knowledge in law and morals that if it is compensation to harm, would the violate do that or not? And, if they do that, what level should they go to? By testing the economic aspect, Coase promised a non-ability for defender in case that
“…whether the damaging business is liable or not for damage caused since without the establishment of this initial delimitation of rights there can be no market transactions to transfer and recombine them But the ultimate result (which maximizes the value of production) is independent of the legal position if the pricing system is assumed to work without cost….”
According to these two economic theories, the causation would be identified through "the cheapest cost avoider" analysis and "efficiency care" in party decision- making
33 R H Coase, ‘The Problem of Social Cost’, The Journal of Law & Economics, 3 (1960), 1–44
34 William M Landes and Richard A Posner, ‘1 The Positive Economic Theory of Tort Law’, in The
Economic Structure of Tort Law, 2014
35 Peter C Carstensen, William M Landes, and Richard A Posner, ‘Explaining Tort Law: The Economic Theory of Landes and Posner’, ed by William M Landes and Richard A Posner, Michigan Law Review, 86.6 (1988), 1161 .
The concept and Function of Toxic Tort Law
In this day and age, the detrimental impacts of hazardous wastes have disturbed humans, particularly those who have been victims of them Tort litigation may be an option for victims to pursue justice and fairness; nevertheless, toxic legal suits are not the easiest and most effective means to achieve victims' goals When enacting legislation, legislators utilized the following modes to control tort law: The victim, who is also a plaintiff, or the victim's property has been injured as a result of exposure to more than one hazardous material of a defendant in a typical and basic toxic tort litigation As a result, the victim would bring a tort case to seek compensation for the plaintiff's many injuries, such as cancer sickness, future injury, fear, and anxiety related to future harms, … 36
In some opinions, toxic tort law is different from environment tort law, which are usually believed to be the same type of tort law In both toxic and environmental tort law, the illegal act of the defendant is that they have polluted the environment which would harm numerous people Toxic tort lawsuits, as above-mentioned, would protect private benefits and injuries of individuals Toxic tort law is much more related to private tort litigations On the other hand, environmental tort cases would mainly focus on the damages and harms of the ecosystem and environmental quality which can be considered as the public interest 37 Environmental tort defendants typically breach environmental administrative policies and legislation As a result, if Illegal acts are discovered, which may be difficult to be precisely the same as a legal presumption, it will be easier to find causation than in toxic tort cases, because all causations have been explicitly controlled However, until recently, most academics believed that toxic or environmental tort were interchangeable concepts, therefore, in this paper, the
" environmental tort ” and “ toxic tort ” terms would be used assynonyms To clarify, toxic tort or environmental tort is when a defendant pollutes the environment which
36 James L Kimble, ‘Conflicting Trends in Toxic Tort Liability’, Environmental Claims Journal, 2.2 (1990), 153–64
37 ‘CAUSATION IN ENVIRONMENTAL LAW: LESSONS FROM TOXIC TORTS’ cause plaintiffs’ sickness, property’s harm or other damage In some legal systems or cases, fault of defendants would be required as a compulsory element
The toxic tort or enviromental tort have some significants characteristics a Illegal act
Firstly to find the illegal act in the toxic tort, the main elements of toxic tort law would be given and extensively studied based on these distinctions between toxic and environmental tort law To begin, hazardous tort law would need prolonged exposure to dangerous substances The rationale for this is that not only would the rate of hazard be adequate over a lengthy period of exposure to clearly show actual harm, but also traveling from a dumping site to areas where humans may be exposed would take time 38 After a long-time exposure to hazardous waste, there would be uncountable victims, and harms, so in a toxic tort lawsuit, there is usually is a class-action suit 39 As a result, there may be a considerable number of prospective victims who are unaware that they have been harmed in a toxic tort law lawsuit, as well as other future injuries, tissue effects, and potential penalties The second characteristic is that determining the damages of each individual would be difficult since, according to the alternative ability and market share responsibility theories, each individual has a distinct lifestyle, hazardous exposure, health state, and so on 40 Furthermore, a single chemical might have innumerable physical health implications Except if a majority of a group of plaintiffs appeared to have been harmed by the defendant, there would be no compelling factual justification to provide recovery in any individual case The fourth characteristic is that causation is the most critical and most difficult pillar to establish in toxic tort claims 41 In the present, science methods are usually used to prove
38 Nguyễn Thị Phương Châm and Nguyễn Minh Châu, ‘Bồi Thường Thiệt Hại Do ô Nhiễm Môi Trường
- Từ Góc Nhìn Lý Thuyết Đến Luật Thực Định Của Việt Nam’, Tạp Chí Nghiên Cứu Lập Pháp, 15.439 (2021)
[accessed 16 March 2022]
39 Michael McCann and William Haltom, ‘Ordinary Heroes vs Failed Lawyers - Public Interest Litigation in Erin Brockovich and Other Contemporary Films’, Law and Social Inquiry, 33.4 (2008), 1043–70
40 Palma J Strand, ‘The Inapplicability of Traditional Tort Analysis to Environmental Risks: The Example of Toxic Waste Pollution Victim Compensation’, Stanford Law Review, 35.3 (1983), 575
41 Strand causation of toxic tort law, however, there are some difficulties in using scientific data, which would be presented in the following paragraphs b Causation
Causation in toxic tort law is cause-in-fact causation which includes general and specific causations 42 As previously mentioned, the “but-for” test is usually used to prove cause-in-fact The general causation would be used to determine causations that would be similar between plaintiffs and which are mainly based on general medical studies; and the specific causation is used to clarify particular causes which would be affected by fungibility of toxin and time lag in its exposure In toxic tort suits, general causation is essential since it would be suitable for a wide variety of problematic cases, so it plays a gatekeeping role in the purpose of creating the types of typical harms However, using general causation only would be impossible and unsure since it may be uncertain in unique cases that have not been preceded Therefore, each case would be required to be supported by specific causations 43 However, because proofs in toxic suits, which are essential pieces of evidence of causation in toxic lawsuits, are based primarily on scientific study and a high level in showing and proving causation, they are questionable and unclear As we all know, scientists have not been able to determine all the dangers of chemicals up to this point Not only would employing current research methods such as epidemiology analysis, vivo analysis, vitro analysis, and structure-activity analysis be time and money-consuming, but it would also be inefficient 44 Therefore, to demonstrate a link with a significant number of diseases of each plaintiff, a large number of specific studies would be conducted to the burden of proof, which must adapt both scientific and legal criteria in order to be accepted as legal and logical evidence
Consideration of hazardous risk is a recent trend in toxic tort law 45 In the nineteenth century, judges were motivated to protect the benefit of business people and business companies by lowering their tort liability standard, because they believed that
42 ‘CAUSATION IN ENVIRONMENTAL LAW: LESSONS FROM TOXIC TORTS’
43 Andrew R Klein, ‘Causation and Uncertainty: Making Connections in a Time of Change’, Jurimetrics
Journal of Law, Science and Technology, 49.1 (2008), 5
45 James L Kimble holding businesses strictly liable for all of the injuries they caused could have drained them of their economic blood 46 However, in today's world, the objective of tort law is to compensate those who have been harmed by harmful chemicals and goods, as well as to create an economic incentive for manufacturers to limit the frequency and severity of such exposures Therefore, in toxic tort field, the factual causation is not the same as it was in traditional tort that based on the “All or Nothing test” This is stated that: if a plaintiff demonstrates by a preponderance of the evidence that she will suffer a future damage, she will be sated for the entire value of the future injury; if not, she recovers nothing Using this approach, the court would require more than 50% likelihood or any reasonable percentage that is the certain best guess at the tort field's margin 47 However, this traditional approach raises substantial various challenges with procedural fairness, predictability, and the justice system fairly
Then by dividing risk into possibility and probability, tort law researchers invented the “loss of chance” test that require the plaintiff to demonstrate by a majority of the evidence that the plaintiff lost the chance for a good outcome, and this loss of opportunity was caused by the defendant Instead of demonstrating a 50% risk, the plaintiff's causation measure the injury rather than proof of injury, thus damages are determined by multiplying the lost opportunity by the present value of the entire losses if the plaintiff fails to recover 48 This test was explained in the Holton v Memorial Hospital, 176 Ill 2d 95, 111-12 (Ill 1997):
"Lost chance" or "loss of chance" in medical malpractice actions refers to the injury sustained by a plaintiff whose medical providers are alleged to have negligently deprived the plaintiff of a chance to survive or recover from a health problem, or where the malpractice has lessened the effectiveness of treatment or increased the risk of an unfavorable outcome to the plaintiff Under the traditional formulation of proximate cause, as reflected in Borowski, the plaintiff must prove that defendant's alleged medical malpractice more probably than not caused the claimed injury Where there is evidence that a
46 Daniel J Herron, Elisabeth L Silvaggio, and Laura Powell, ‘The Evolution Of Foreseeability In The Common Law Of Tort’, North East Journal of Legal Studies, 35 (2016)
47 Robert Rhee, ‘The Application of Finance Theory to Increased Risks Harms in Toxic Tort Law Litigation’, Virginia Environmental Law Journal, 23.2 (2004), 111
In cases where a patient's chances of survival or recovery without malpractice are estimated to be 50% or less, traditional notions of proximate cause may not apply according to some courts.
There is nothing novel about requiring health care professionals to compensate patients who are negligently injured while in their care To the extent a plaintiff's chance of recovery or survival is lessened by the malpractice, he or she should be able to present evidence to a jury that the defendant's malpractice, to a reasonable degree of medical certainty, proximately caused the increased risk of harm or lost chance of recovery We therefore reject the reasoning of cases which hold, as a matter of law, that plaintiffs may not recover for medical malpractice injuries if they are unable to prove that they would have enjoyed a greater than 50% chance of survival or recovery absent the alleged malpractice of the defendant.”
In rare cases, minority proportion test which have allowed recovery for increased risk though the risk is less than a preponderance might be used This test considers future risk as a damage of plaintiffs
In the Petriello v Kalman, 215 Conn 377, 396 (Conn 1990), the Judge opined that: “If this increased risk was more likely than not the result of the bowel resection necessitated by the defendant's actions, we conclude that there is no legitimate reason why she should not receive present compensation based upon the likelihood of the risk becoming a reality When viewed in this manner, the plaintiff was attempting merely to establish the extent of her present injuries She should not be burdened with proving that the occurrence of a future event is more likely than not, when it is a present risk, rather than a future event for which she claims damages In our judgment, it was fairer to instruct the jury to compensate the plaintiff for the increased risk of a bowel obstruction based upon the likelihood of its occurrence rather than to ignore that risk entirely.”
According to the corrective justice theory, recognizing proportional increases in future risk claims in these circumstances may be an extension of the special policy, particularly in personal injury cases
To resolve the issue in finding causation of toxic tort suits, some researchers and judges have suggested non-causation model in litigation This model would be discussed hereinafter while analyzing the Agent Orange case (See in 4.1.1 The In re Agent Orange Product Liab Litig., 611 F Supp 1223 (E.D.N.Y 1985))Error!
Litigation in toxic tort cases can be effective for risk management and finding justice Despite challenges, plaintiffs and defendants engage in extensive negotiations and discovery to protect their interests However, due to the difficulty in proving causation, plaintiffs may face limited chances of compensation As an alternative, mediation offers a quicker and simpler approach, avoiding prolonged litigation and excessive attorney's fees By employing economic theories, parties can determine liability in toxic tort cases, enabling fair resolutions.
Relationship of Toxic Tort Law and the economic tort theories
This theoretical chapter would be concluded by investigating the relationship between toxic tort law and tort theories based on economics which are significantly related to liability of parties in an environmental tort litigation As previously indicated, the costs and time required in launching a hazardous tort claim are enormous Economic tort theories, which are primarily concerned with economic efficiency, reveal a disparity in methods to balance public and private benefits Typically, corporations and people want to maximize their wealth objectives While corporations want to improve their financial position, stock price, and so on, consumers may choose to purchase items at a reasonable and affordable cost These objectives have an impact on the decisions made by businesses Toxic tort legislators, on the other hand, are more concerned with public interests and societal expenses linked with environmental protection costs in sustaining environmental quality degradation 59 Because of conflicting interests, economic tort theories could be used as methods to blur this conflict Calabria's theories show that “the cheapest cost avoider” and Posner’s theory presented that at the efficiency in both economic and environmental aspects when considering cost-benefits and making decisions, the standard of care of wrongdoers would be clarified These theories might be used instead of using the traditional “but-for ” test in finding cause-in-fact which is costly due to scientific researching to find the reason for illegal act For example, in traditional toxic tort, by using the “but-for”“ test, judges would base on this example test: but if Chrome 6 were not contained in water, Anna would not be cancer, and in this test, scientific evidences would be used to show the relationship of the illegal act and disease consequence However, by using these economic tort theories, because the reason why Company A was failed in considering the efficiency in his business decision, for example, he did not build a hazardous resolving premise that cause Chrome 6 to leak out, especially when a consequence is clear, there would be no need of general causation, therefore, large amount of money would not be spent to find
59 Robert F Rooney, ‘Environmental Economics’, UCLA Journal of Environmental Law and Policy, 1.1 (1980) scientific evidences This non-causation is used in 2 US cases In both Agent Orange and Manville, people in comparable situations were compensated fairly, transaction and information costs were reduced Therefore, In Agent Orange, the litigation was resolved efficiently, quickly, and conclusively 60
VIETNAMESE'S LAW IN ENVIRONMENTAL
The 2015 Vietnamese Civil Code
The 2015 Civil Code is the foundation and basis of private law which modified all civil tort In the 2015 Civil Code, lawmakers have still not defined foundation definitions as strict liability, trespass, negligence, and so on However, these types of tort have showed up a little bit in articles
The 2015 Civil Code introduces new provisions for tort law, outlining the conditions for liability: infringement on life, health, reputation, participation, dignity, property, rights, or other legitimate interests Compensation is due unless there is force majeure, fault of the aggrieved party, or consent Determining liability requires assessing breach, damage, and blame The Code also allows parties to agree on compensation, respecting the principle of free will in private law These general tort principles are codified in Section 1, Chapter 20 of the 2015 Civil Code.
According to damage of victim, toxic tort regulation under the 2015 Civil code can be divided into health damages and property damages To be eligible for a tort claim, injuries must fall into one of the following categories: life, health, honor, dignity, reputation, property, and other legitimate rights and interests As a result, a person with the right to sue has three years from the time he or she knows or ought to know that his or her legitimate rights and interests have been violated to file a lawsuit for compensation This remuneration will be based on the following fundamental principles:
- Actual harm must be reimbursed fully and immediately The parties can reach an agreement on the amount of compensation, the form of compensation, and the mechanism of compensation
- If there is no responsibility or unintentional fault and the harm is too severe for his or her economic capabilities, the person liable for recompense for damage may be entitled to a decrease in compensation
- Actual harm must be reimbursed fully and immediately The parties can reach an agreement on the amount of compensation, the kind of compensation, and the mechanism of compensation
- When the compensation level is no longer commensurate with reality, the aggrieved party or the person that caused the damage has the right to seek that the compensation level is changed by a court or other competent state body
- When the aggrieved party is at blame for inflicting the harm, it is not entitled to compensation for the loss produced by its own fault
- The person whose rights and interests are violated is not entitled to compensation if the harm happens as a result of the failure to take necessary and reasonable precautions to prevent or limit the damage itself
Plaintiffs of toxic tort suits might use Article 589, 590, 591 Civil code 2015 which regulates infringement of property, health, and harm to life damages Firstly, in case the plaintiff’s property is harmed, a violated person might fill a tort lawsuit to be compensated for the following damages:
1 Value of the property of the plaintiff was lost, destroyed, or damaged;
2 Interests associated with the use and exploitation of the property were lost or declined due to Illegal act
3 Reasonable costs for the prevention, mitigation, and remedy of the damage Second, if the plaintiff's health is jeopardized, they will be compensated:
1 Reasonable expenditures for treating, nursing, and rehabilitating the aggrieved person's health, functional losses, and impairment;
2 Loss or diminution in the aggrieved person's actual income If the aggrieved person's real income is irregular and cannot be ascertained, the average income level for the type of job performed by the aggrieved person should be applied;
3 Reasonable costs and actual income losses of the aggrieved person's caregivers throughout the duration of treatment If the aggrieved person loses his or her capacity to work and requires a permanent caregiver, the harm must include reasonable expenditures for the aggrieved person's care
4 Metal suffering of the aggrieved person that shall be as agreed by the parties or without an agreement, it might be at the maximum sum of fifty-month base salary
Third, if an injured person dies, the following damages may be paid:
3 Support for the aggrieved person's dependents;
4 Compensation for the mental anguish of the deceased's closest relatives in the first line of succession or those who were directly nurtured by the deceased or persons who directly reared the deceased The amount of compensation for mental anguish shall be as agreed upon by the parties or at a maximum sum not to exceed one hundred months base wage
Furthermore, if they violated regulations, defendants may be compensated for sources of extreme danger such as motorized modes of transportation, power transmission systems, operating industrial plants, weapons, explosives, inflammable substances, toxic substances, radioactive substances, and dangerous animals, and other sources As a result, the owner of a very dangerous source must compensate for the damage caused by the source Unless otherwise agreed, if the owner transfers custody or uses the source of great danger to another person, that person must pay An owner, or a person to whom an owner has transferred control or use of an extreme risk source, shall compensate for the harm caused by such source, even if such owner or person is not at fault unless one of the following conditions is met:
1 The aggrieved person is totally at blame for creating the harm on purpose;
2 The damage happened as a result of a force majeure occurrence or in an emergency situation unless expressly provided by law
Owners or parties given possession/use of extremely dangerous sources are liable for damages caused by illegal possession/use if they are at fault for allowing such activity This liability is joint and several, meaning all responsible parties may be held accountable for the full extent of the damages.
Moreover, if the defendants damaged the environment and caused harm, they must recompense in accordance with the law, even though the entity damaging the environment was not at fault
Thus, in order to safeguard the weaker party, existing legal regulations have taken into account both the injured party's economic capabilities and other equitable elements This compensation can be agreed upon by the parties; but, if the parties are unable to reach an agreement, the State agency or judicial agency can join in the arbitration on this topic if asked
To conclude, in the 2015 Civil Code, Vietnamese lawmakers used strict liability with the toxic tort which related to damage caused by sources of extreme danger and environmental tort Hereinbefore, in Articles 601 and 602, a fault is not required as a compulsory element in tort litigation Moreover, the tortfeasor must compensate to victims even they intentionally or attentionally cause damage Therefore, in toxic tort law, a duty of care would be used as a basic duty of manufacturers since they would have to operate their business with the highest care Although in the 2015 Civil Code, the term “duty of care” is not mentioned, the lawmakers list behaviors related to duty of care in the Article 601.1 that law required producers must comply strictly with the regulations on taking care of, preserving, transporting, and using sources of extreme danger in accordance with the law However, the term “in accordance with law” would make confusion in most cases and would be risky for producers in practice, which would be analyzed carefully hereinafter Therefore, under the 2015 Civil Code, the liability of tortfeasor might be jointly or several liability In addition, due to absolutely violating the duty of care, the tortfeasor might be free from compensation responsibility only if the tortfeasor can prove that the damage is due to the fault of the victim or in force majeure scenarios, the wrongdoer would be free from paying damages According to contributive justice theory, these exceptions would be fair in compensating the wrongdoer, in the toxic tort caused by sources of extreme danger
The 2020 Environmental Protection Law
The Civil Code is broad legislation that governs general concerns that are governed not only by the Civil Code but also by a specialist law, the Law on Environmental Protection 2020 (LEP 2020) Like other legal systems in the world, the LEP 2020 is a useful and effective method to manage a company that would require them to follow standard environmental protections requirements which aim to protect the earth This LEP 2020 is based mainly on the Polluter Pays Principles in mandate industrial polluters to meet environmental standards at their own expenses, imposing direct charges for cleanup, fees, fines, … Initially, as investors arrange for a building project, a report on environmental implications that are paid for by investors would be legally required Following that, during the operation period, they will keep paying for the cleaning of their pollutants and the site of their premises It effectively imposes strict accountability for all losses on any potentially liable parties Manufactures must clean up or face treble damages for failing to comply with requirements Furthermore, a high tax on polluting sectors and dedicated to clean-up would be levied in order to cover the expenses of economic transformations 61
LEP (2020) contains a distinct section to discuss this topic, which states that damages generated by acts of generating environmental pollution are classified into two types: public environmental damages and heath damages Many damage-causing entities are compensated based on the kind of pollutant, emissions, and other polluting elements for each specific object; this is the foundation for establishing the damage rate in general, from which to delegate responsibility for each thing This determination will be the duty of the relationship's parties or of the specialized agency in determining damages However, the legislation also empowers the competent judicial body to make a decision on this matter if the preceding two measures fail to achieve an agreement
State administrative authorities, as well as persons and organizations whose rights are violated by this act, have the right to seek compensation and assess the degree and rate of harm In this case, state power agencies include Commune-level
People's Committees, which are responsible for claiming compensation for toxic tort caused in the area under their management; District-level People's Committees, which are responsible for toxic tort caused by pollution and degradation in the area of two or more commune-level administrative units If pollution occurs in the territory of two or more district-level administrative entities, provincial-level People's Committees will be formed If the act is done in the area of two or more provincial administrative units, the Ministry of Natural Resources and Environment, in collaboration with the provincial People's Committee, is responsible State authority agencies are in charge of demanding compensation for harm and organizing the gathering and evaluation of data and evidence to evaluate toxic tort caused by pollution or deterioration If lower-level agencies discover that they are unable to resolve complex acts and damages, they might request assistance from a higher-level agency
Other organizations and individuals determine damage and claim compensation for toxic tort for individuals and organizations that suffer the loss of life, human health, property, and legitimate interests as a result of a decline in the function and usefulness of the environment by themselves or by authorizing a state agency As a result, only when persons or organizations are directly harmed do they have the ability to sue under tort law Individuals are actively and directly impacted by this problem if the state agency is the cause of the damage LEP, in conjunction with the 2015 Civil Code, has permitted approved persons and groups to represent one another in class action lawsuits This is a step forward in protecting the disadvantaged party - the impacted party - as well as assisting in the resolution of these disputes more rapidly and synchronously This reduces the expense of procedures, the burden on the jurisdiction, and so on
The complaint alleging toxic tort lawsuit can be settled by Mediation, Arbitration, or Court Dispute Resolution This is the parallel between the Civil Procedure Code of 2015 and the Environmental Protection Law of 2020 The demonstration of causation between environmental violations and harm incurred is a specific point with this obligation under the responsibility of businesses and persons that violate or cause environmental pollution As a result, the fault in this situation can be regarded as natural; if the breaching party cannot establish the contrary, then the defendant will, of course, be at blame
In this situation, compensation can be given to the Vietnam Environmental Protection Fund or the provincial environmental protection fund, which will handle the payment for the victims, or it can be paid directly to the victims These costs include:
- The cost of immediate and long-term damage caused by the environment's decline in function and usefulness;
- The cost of environmental treatment and improvement;
- The cost of reducing or eliminating sources of damage or responding to environmental incidents; and
- The cost of determining damage and carrying out compensation procedures for environmental damage
The evaluation of damage caused by violations is required to ensure the determination of damage However, the new rule now governs the evaluation of environmental damage without addressing the question of human harm This will make determining the extent of the property and human health harm challenging in certain circumstances
The evaluation of environmental damage should be carried out at the request of the organization or individual experiencing the damage, or the body dealing with environmental compensation This is the plaintiff's right to calculate damages based on the damage claim file, information, data, proof, and other reasons relevant to damage compensation and the subject matter of the claim In the event that an item causes harm, the legal authorities will determine the fairest compensation amount, as well as the accountability of each object A damage assessment organization is chosen by the assessment requester; if there is no agreement between the berths, the compensation- settling agency will choose a damage assessment organization.
Case stydy in Environmental Liability
3.2.1 Case no 84/2017/DS-PT of the People's Court of Ba Ria - Vung Tau province (BR-VT) on Compensation for damage caused by environmental pollution
This is a class-action lawsuit brought by 33 plaintiffs against 11 seafood enterprises in the province of Ba Ria Vung Tau (BRVT)
In September 2015, aquaculture facilities situated along the Cha Va River in Vung Tau suffered a catastrophic loss due to the mass mortality of fish in their cages The incident, estimated to have claimed the lives of approximately 30,000 fish, including valuable species like pomfret and cobia, resulted in a significant financial loss of 17 billion VND.
The plaintiffs rely on the Institute of Environment and Natural Resources Report No 119/BC-MTTN dated November 19, 2015, to calculate the rate of environmental contamination of 14 firms, the majority of which are caused by companies Waste from the seafood processing factory in L4 commune, N3 district, is discharged into Sewer No 6
Defendants claim exemption from compensation due to the absence of dumping, asserting compliance with the law They also dispute the damages as unreasonable, arguing that the deceased fish were of saltwater origin and that the plaintiff's fish succumbed to external factors beyond their control.
According to the plaintiffs, water contamination produced by the defendants' discharge into the Cha Va river accounted for 76 64 percent of the cause of death of the fish grown in the defendants' rafts single That polluting work produced a deficiency of dissolved oxygen in the plaintiff fish culture from September 5 to 14,
2015, causing the fish to be poisoned by NO2
According to Resolution 03/2017/NQ-HDTP and Official Dispatch 144/TANDTC-PC 2017, the first-instance decision is not published
According to the Tuoi Tre newspaper, the majority of these suing firms have for long years directly dumped garbage into the environment For example, Phuoc An Co , Ltd was fined and stopped from operating for three months by the Department of Natural Resources and Environment of BR-VT province for releasing garbage directly into the environment As of September 2012, this firm was still breaking the law and was punished for releasing garbage in excess of the allowed threshold 62
According to CafeF vn, the People's Committee of BR-VT province determined that the cause of mass fish deaths was unqualified waste discharged directly into the river from seafood processing factories and fishmeal factories in Tan
62 Đông Hà, ‘“Hồ Sơ” Xả Thải 14 Doanh Nghiệp vụ Cá Chết Trên Sông Chà Và - Tuổi Trẻ Online’,
Báo Tuổi Trẻ
Hai commune, so the provincial Department of Natural Resources and Environment will provide a solution to require businesses to compensate for damage to fishermen, to resolve dialogue and negotiation, similar to the method with the Vedan case
3.2.2 Case 84/2019/DS-PT dated July 30, 2019, of the People's Court of Bac Giang province
Mr Than Van C's home has requested that Company B be sued for releasing trash, harming the environment, and inflicting economic harm to his family
As a result, his family owns a total of 1322 m2 of land in Tr, district V, Bac Giang province According to Mr C, Company B discharged hazardous wastewater 10 times higher than the permissible technical level into canal T4 and Ngoi B channel (two water sources used for irrigation by Mr C), as well as harmful gas
Due to utilizing polluted irrigation water from 2007 to 2017, Mr C's household's rice output was lowered by an estimated 1 2 quintals of rice/ 1 acre of field/ year Furthermore, Mr C sought Company B to be liable for restoring the property to its previous state so that his family might utilize it, but he later dropped this appeal
Company B specializes in the manufacturing of paper and packaging In May
2016, the firm was administratively sanctioned; following that, the company constructed a proper wastewater treatment system The firm claims that its wastewater disposal system cannot share water with Mr C's field irrigation water (channel T4), but it discharges treated wastewater at the end of channel T6, and it does not burn paper, which causes smoke and pollution Previously and currently, the Company has never discharged directly into the T4 channel
The organization feels that Mr C's household's decreased output is related to a variety of reasons, not only the supply of irrigation water In addition, he also could not provide documents to prove how he suffered the loss of rice yield caused by the Company
However, over the course of the proceedings at the first-instance trial level, the Court gathered information that Company B did not discharge directly into the T4 channel, but only into the T6 channel On the basis of that evidence, the first instance court denied Mr C's petition to file a case
"The company draws water from T4 canal for production use (T4 channel is adjacent to the Company's wall) and discharges it into T6 canal through an underground sewer," according to the wastewater schematic given by Company B The T6 channel is lower than the T4 channel and is separated from it by a sluice gate (underground culvert is located under the road, the path is perpendicular to T4 channel and parallel to T6 channel) This discharge gate is normally closed During the rainy season, if the water level in the T4 canal is too high, this discharge gate is opened to allow the water to flow into the T6 canal Water in the T6 canal cannot return to the T4 canal (even when the discharge gate is opened) Trade flows into the T6 channel (Cong B canal) (against the flow of the T6 channel), but water from the T6 channel cannot flow back into the T4 channel because of the huge height difference between the T4 and T6 channels is vast, and because the discharge gate is locked, there is a water pumping station in Ch village next to canal T6 This water pumping station in
Ch village has been dormant for quite some time Previously, the pump at Ch village's water pumping station drew water from the T6 canal and pushed it into the T4 canal to transport it to Ch field When the T4 channel becomes dry, the Company has to receive water from the T6 channel and must employ a pump to draw it from T6 into T4 This Ch village pumping station is very close to the Company's pump If the water in channel T4 is insufficient for manufacturing, the corporation utilizes a pump to take water from channel T6 Canal T4 connects the Company to the low-lying land (Tr field of T commune) Tr field and Ch field both get water from the T6 canal via a single pumping station located upstream of the T6 canal In which the Company's discharge point flows into canal T6 but is at the far end of the water supply (in the direction flowing from the upstream to the Thriver) " As a result, there is no link between his actions and the repercussions of his harm
In Hamlet 7, Tang Tien commune, Viet Yen district, Bac Giang province, residents have reported health and property damage However, the number of plaintiffs in the subsequent trial decreased from 5 to 2 and no compensation was sought for health damage due to a lack of supporting evidence.
Controverise of Vietnamese regulations
4.1 Case study in comparison with 2 US verdicts
To make clear the issue of not only Vietnamese regulation but also US law when making decisions in toxic tort litigation, I would take into consideration 2 popular cases
4.1.1 The In re Agent Orange Product Liab Litig., 611 F Supp 1223 (E.D.N.Y 1985)
In a momentous toxic tort case involving 600,000 injured individuals, plaintiffs, including Vietnam veterans, claimed health injuries caused by Agent Orange exposure The case centered around 2440 lawsuits against seven defendants responsible for manufacturing the herbicide Through extensive epidemiological studies and expert affidavits, plaintiffs established a causal link between Agent Orange and various health problems, including miscarriages, birth defects, and ailments in veterans, demonstrating the profound impact of the Vietnam-US conflict on its participants and their families.
Judge Weinstein's verdict in Weinstein considered the scientific validity and legal admissibility of expert testimony, aligning with the con-causation model established in Miller v National Cabinet Co and Ferebee v Chevron Chemical Co This model allows for causation-in-fact to be established without requiring epidemiological or specific evidence, providing a framework for determining legal responsibility based on reasonable inferences from scientific research.
1529 (D.C.Cir.), cert denied, _ U.S _, 105 S Ct 545, 83 L Ed 2d 432 (1984)
On the other hand, the Judge debated tortfeasor and wrongdoer, statutes of limitation, and government contract defenses
It is a discussion about the legal significance of studies demonstrating that Agent Orange caused veterans' health problems Plaintiffs seek to present numerous
COMPARATIVE LAW IN THE US THROUGH CASE
Case study in comparison with 2 US verdicts
To make clear the issue of not only Vietnamese regulation but also US law when making decisions in toxic tort litigation, I would take into consideration 2 popular cases
4.1.1 The In re Agent Orange Product Liab Litig., 611 F Supp 1223 (E.D.N.Y 1985)
In the Agent Orange toxic tort case, approximately 600,000 individuals, including Vietnam veterans and their families, claimed health injuries caused by exposure to the herbicide The plaintiffs alleged that exposure to Agent Orange resulted in health problems such as miscarriages, birth defects, and other adverse outcomes To prove their case, the plaintiffs utilized epidemiological studies and expert affidavits, demonstrating a statistical correlation between exposure to Agent Orange and the reported health issues This highly publicized case, involving plaintiffs affected by the Vietnam War, has significant implications for understanding the long-term health consequences of environmental toxins.
Judge Weinstein examined the scientific worth and legal adaptation of research and expert testimony in order for it to be considered legal evidence in this Weinstein verdict Furthermore, he considered this situation to be consistent with the con- causation model, which does not require epidemiological or particularistic evidence to establish causation-in-fact, as in Miller v National Cabinet Co., 8 N.Y.2d 277, 204 N.Y.S.2d 129, 168 N.E.2d 811 (1960) Ferebee v Chevron Chemical Co., 736 F.2d
1529 (D.C.Cir.), cert denied, _ U.S _, 105 S Ct 545, 83 L Ed 2d 432 (1984)
On the other hand, the Judge debated tortfeasor and wrongdoer, statutes of limitation, and government contract defenses
It is a discussion about the legal significance of studies demonstrating that Agent Orange caused veterans' health problems Plaintiffs seek to present numerous veterans' health, miscarriages, and birth problems in their family members Plaintiffs relied on animal studies, industrial accidents and surveys, death certificates, and medical and clinical findings Judge Weinstein, on the other hand, disallowed animal and industrial accident studies because they might be a prediction of future health effects that cannot demonstrate current causation Furthermore, despite the availability of relevant data, he rejected the significance of these studies due to the inability to demonstrate a link between Agent Orange exposure and health consequences The reason for this is that studies have shown no clear and convincing evidence that soldiers who were exposed to Agent Orange were at a higher risk of major birth abnormalities Furthermore, despite the availability of relevant data, he rejected the significance of these studies due to the inability to demonstrate a link between Agent Orange exposure and health issues The reason for this is that studies have shown no clear and convincing evidence that soldiers who were exposed to Agent Orange would be at a higher risk of major birth defects Furthermore, in terms of veterans' health, he demonstrated that exposure to Agent Orange might be viewed as a factor only in a variety of factors that veterans were exposed to over a long period of time He sought two studies that compared New York State Vietnam veterans to soldiers from other eras, and both studies showed that there is no significant disease difference between veterans The judge used not only this research but also claimed that despite years of discovery and millions of dollars spent on researching evidence indicating a genuine issue of fact about Agent Orange's causation on veterans, which is becoming less and less likely as the elderly Vietnam veterans are constantly exposed to extraneous variables intoxicants and illness rises dramatically with age from many natural causes Then, while evaluating the value of expert testimony, the Judge rejected the expert opinions because they did not meet legal standards of expert testimony and had poor scientific correctness
In addition, Judge Weinstein refused to apply the non-causation model which had been applied in the Miller v National Cabinet Co., 8 N.Y.2d 277, 204 N.Y.S.2d
129, 168 N.E.2d 811 (1960) and Ferebee v Chevron Chemical Co., 736 F.2d 1529 (D.C Cir.), cert denied, _ U.S _, 105 S.Ct 545, 83 L.Ed.2d 432 (1984) cases Firstly, he explained that in the Miller case, the “plaintiff presented technically competent, probative evidence by his treating physicians that the chemical in question, in fact, led to his death.” In Mr Weinstein’s opinion, the legal issue in Ferebee or
Miller cases is whether the technique or chemical might be considered as the cause of the plaintiffs’ damages or not In addition, in the Ferebee case, the doctor’s conclusion on the disease of a particular victim is evidence instead of epidemiological studies, therefore, epidemiological research might be considered as existing in the Ferebee case Furthermore, plaintiffs in Ferebee were exposed long-term to toxic when “The veterans' exposure to Agent Orange, even were we to grant full force to their inadequate affidavits, was much more attenuated” In addition, in comparison with the Allen v the United States, 588 F Supp 247 (D Utah 1984) case, causation which presents “any ability to quantify the enhanced risk or predict whether plaintiffs would contract cancer”, probity of causation has to be over 50%
In conclusion, Judge Weinstein dismissed this lawsuit due to being unable to establish any existing material facts about causation, wrongdoers, and victims
A settlement was reached on the eve of trial, with $180 million allocated to the class and distributed based on harm suffered, regardless of Agent Orange exposure Notably, the settlement is facing review by the Court of Appeals for the Second Circuit.
4.1.2 Allen v the United States, 588 F Supp 247 (D Utah 1984)
In 1982, 1192 plaintiffs from Nevada, Utah, and Arizona filed a toxic tort action seeking compensation for cancer, leukemia, and other health issues allegedly caused by the Atomic Energy Commission's testing of nuclear devices They alleged that the federal government conducted a series of open-air nuclear test blasts in Nevada during the 1950s, which caused their health problems The trial in 1984 included 98 witnesses who testified, as well as 1962 research and papers, as evidence
Judge Jenkin agreed that exposure to radiation which can be from external or internal exposure cause health issues While external exposure is direct harm to fallout materials, internal exposure would impact on foods, air, and water that citizens would level of exposure and in proving causation related to other nations; causation of cancer, extraordinary time factors, and so on The judge used research to show that exposure to radiation would not cause typical cancer and exposure to radiation might be a factor in many factors of cancer or birth defects
In this decision, Judge Jenkin argues that, while causation-in-fact is an essential aspect of a hazardous tort action, if the plaintiff has no way of identifying the exact cause-in-fact of her harm, the plaintiff simply has to prove a substantial link between the cause and the injury The defendant then holds the burden of proving the exact reverse When cases began to develop in which the plaintiff could not establish the exact cause-in-fact of the damage, the courts developed the idea of substantial causation Therefore, instead of requiring a piece of evidence that exposure to radiation would raise the number of cancer patients, Judge Jenkin required plaintiffs to illustrate 5 following elements of evidence to be successful in this case: As a result, rather than needing evidence that exposure to radiation will increase the number of cancer patients, Judge Jenkin asked plaintiffs to demonstrate the five elements of evidence listed below in order to be successful in this case: (1) the presence of exposure to radiation; (2) the level of exposure, such as the total amount, frequency, and duration of exposure; (3) previous occurrence of symptoms associated with exposure to radiation; (4) demonstration of the chemical's affiliation with the infection caused by radiation; and (5) length of time resulting from exposure These aspects would be utilized to demonstrate that plaintiffs' cancer risk would increase as a result of being exposed to radiation at a reasonable level These elements would be used to show that due to exposure to radiation at a reasonable range, the risk of cancer for plaintiffs would raise Plaintiffs may establish less than five factors since the aggregate of the components determines whether the plaintiff has fulfilled her burden of proof Failure of one or two variables is likely to be fatal in proving a substantial link
Although not all plaintiffs were successful in demonstrating that they were injured as a result of radiation exposure, he determined that certain other plaintiffs had met their burden of demonstrating that exposure to the test blasts caused their disabilities In these 10 cases, he awarded damages ranging from $15,000 for cancer in a small child to $50,000 for the death of a parent
Each of the above instances is a milestone in terms of politics and economics, yet the Judge's perspectives in both cases differ In both cases, major health difficulties arose, resulting in the plaintiff's damages as a result of the defendants' actions In all cases, Agent Orange or radiation was seen as one of several variables that contribute to health problems Furthermore, plaintiffs will have a difficult time demonstrating causation-in-fact in both cases As in previous toxic tort cases, the main challenge is determining the actual cause, which will be utilized to distinguish between unexposed and exposed persons who all have the same ailment In other words, it is determined whether or if the aforementioned hazard caused the plaintiffs' disease However, in 2 cases, the viewpoint of Judge Jenkin and Weinstein seems different
In the Agent Orange case, Judge Weinstein implemented the "either-or" test to determine causation-in-fact This test compares the number of individuals exposed to a hazardous substance to those unexposed with similar background characteristics By analyzing medical history, personal habits, and geographical factors, Weinstein aimed to distinguish between individuals with the same condition If the number of exposed individuals with cancer exceeds the number of unexposed individuals with cancer, it suggests that the exposure may have caused the plaintiff's injury Thus, the increase in cases among the exposed population serves as an indicator of causation-in-fact.
Judge Jenkin, on the other hand, utilized the "substantial factor" to determine responsibility for each co-existing cause 72 Judge Jenkin based his decision on the notion that a disease has multiple causes, each of which has a specific proportion in
70 Neil Orloff, ‘THEORIES OF CANCER AND RULES OF CAUSATION’, Jurimetrics, 27.3 (1987), 255–62
72 DEBORAH WOLLEN, ‘REFORMATION OF THE BURDEN OF PROOF: TORT—Radioactive Fallout—Problems with Burden of Proof—Need for a Change’, Natural Resources Journal, 26.2 (1986), 377–89
the causes of illness; so, without exposing a particular contaminant, individuals may only reduce their likelihood of obtaining that disease rather than not suffering that disease As a result, he considers if there is an observed statistical incidence of the injury in the region that is bigger than the predicted incidence in the same population
If a defendant's behavior constitutes a "substantial factor" in raising the risk of injuries, he may be held accountable for all the plaintiffs' injuries In this scenario, plaintiffs must show that there is a greater than 50% chance that their damage was caused by hazardous exposure when compared to persons with comparable backgrounds This test takes into account the possibility of causality
Toxic Tort Risk And Suggested Methods For Companies To Manage Toxic Tort
In doing business, due to issues in toxic tort law, there are various risks to companies while operating As above mentioned, the main principle of tort law is to compensate the victim a reasonable amount, and to the company, tort law might be a method to determine and reduce their risks Much larger than the environmental administrative punishment fee, toxic tort law is costly and might cause the bankruptcy of a company While operating, considering the cost of damages paid in toxic tort is necessary
Business entrepreneurs usually have conflicting interests when operating The main role of a business operating is making a profit When a stockholder invests in a company, they may only be concerned about a financial benefit that the company would be able to create Any loss of a company also directly or indirectly impacts their wealth, therefore, stockholders will not make any decision without considering on company’s benefit However, besides the financial benefit purpose, the company also has a social function In some cases, this function might be unable to collapse
In the toxic tort law, the company might usually take responsibility for toxic risks and damages According to George Priest’s theory, a company always has the best position in taking responsibility for tort since the company is in the best position to determine and decide based on benefit and cost 73 Companies have the personnel, the financial resources and most importantly, the power to make decisions The company could choose between operating in a sustainable method or not On the other hand, the consumers or victims are harmed passively outside their will
When imposing liability on enterprises, the fault might not be as important as we think Whether it be intentional or not, when making a wrongful behavior that harms others, the company should take responsibility for its decision In modern tort law, the economical goals of tort which is used to find “the best cost avoider” or
“distribution risk”, justice is the main and utmost essential aim of tort law 74 Although that might be hard in defending what is justice, justice always has to be the main defined goal when utilizing economical means
Toxic risks pose significant threats to businesses While some companies may opt to avoid these risks, others engage in risk-taking due to various reasons To effectively manage toxic risks, companies should first assess the potential liabilities and weigh the benefits and drawbacks of different risk management strategies This chapter examines the rationale behind both risk avoidance and risk-taking decisions and offers practical methods for companies to mitigate toxic risks in real-world scenarios.
Risk is a common term related to the probability and possibility of an event that might happen in the future In the case, of Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32, the term "risk" is defined as the product of the chance of an event occurring and the severity of harm In general, this reflects one aspect of the breach analysis Considerations of the practicability and expense of safeguards against such danger give a counter-balance As a result, failing to appropriately limit anticipated hazards not only constitutes a violation of duty but also increases the risks
73 Robert L Rabin, ‘Some Thoughts on the Ideology of Enterprise Liability’, Maryland Law Review,
55.4 (1996), 1190 See also George L Priest, The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law, 14J LEGAL STUD 461, 461 (1985): “With the continuing growth of first-party health insurance coverage, the gap in risk-spreading capacity between injury victims and injurers closes to some extent Nonetheless, health insurance remains far from universal, and income loss-let alone pain and suffering-clearly continues to track assumptions about superior risk-spreading capacity underlying enterprise liability ideology.”
These three topics have recently gotten a lot of attention because of their deep connection to "toxic hazards" Toxic hazards have the following elements: (i) The materials that produce them are not negligently produced or constructed, however, they inflict harm due to their chemical characteristics, as they cannot do good without also doing ill For example, when scientists invented plastic, it was an incredible invention that substantially influenced the world However, up to the present, plastic has introduced various negative impacts on our health and environment Not only does it pollute our environment but was also found to contaminate our blood, according to recent Dick Vethaak’s research 75 (ii) The long-term consequences of previous exposure due to the time lag between exposing time to be harmed Plastic materials (e.g plastic bags) might take 1000 years to totally break down (iii) The existence and degree of harm are uncertain, some of which turn out to be toxic and others that do not Up to now, not all chemicals would harm an individual’s heath, although many others may (iv) Harms assessed in money might be considered in relation to the profitability of the enterprises that market hazardous or harmful materials and products made from them, since many people are prone to them 76 This last characteristic of toxic harm would be considered carefully in the following paragraphs
4.2.2 Cost of damage to a victim
Risk, as defined earlier, is an integral part of accident costs This risk arises during decision-making and can be considered an element of production and accident expenses Moreover, accident analysis considers both present and future damages, including injuries and accident probabilities or risks.
In the case of United States v Carroll Towing Co., 159 F.2d 169 (2d Cir 1947), courts must consider whether the burden of that party in adopting reasonable measures
75 Damian Carrington, ‘Microplastics Found in Human Blood for First Time | Plastics | The Guardian’,
The Guardian, 24 March 2022 [accessed 29 March 2022]
76 Alan Schwartz, ‘Products Liability, Corporate Structure, and Bankruptcy: Toxic Substances and the Remote Risk Relationship’, The Journal of Legal Studies, 14.3 (1985), 689–736
77 Rhee is balanced by the risk of injury multiplied by the amount of that harm As a result, Judge Learned Hand expressed the threshold of negligence in the following mathematical model:
“Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability is called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i e., whether B > PL.”
According to this formula, in comparison with the expected loss of accident, if the spending on preventing is smaller than the expected accident which is based on the probability of loss and size of the loss, the defendant should take responsibility for occurring risks Although, calculating the value of risk is an important part of determining reasonable responsibility, calculating risk value is a controversial subject among financial researchers To calculate the exact value of risk might be impossible, however, in the legal field, the value of risk might be found while calculating the value of the damage
In the calculating value of damages, there are 3 current common methods in value damage Firstly, damage could be calculated by using the proportionality method which is undoubtedly more successful than the traditional rule in accomplishing the tort system's purpose of protecting the worth of rights Through using the proportionality method, the damage is calculated by multiplying the proportionate increase in risk by the present value of the anticipated harm The traditional technique, on the other hand, calculates damages based on the entire present value of the anticipated future injury The traditional rule may over or under compensate a plaintiff since she would recover totally of any future harm, despite the fact that the likelihood ranged only more than half Both conventional and proportional methods do not take into account the changing nature of risk as a function of time and profit from ease of computation; unfortunately, simplicity is a cause of mistake since assessing damages depending on risk is a fluid rather than a stable activity
Joseph King developed a form of proportionality rule in addition to these two ways The additional risk is a fixed amount under his "expected value" technique, while the present value of the predicted injury varies with time 78
Regulation Recommendations
According to the hereinabove analyses, there are a few recommendations for Vietnamese’s lawmakers to regulate environmental tort litigations Firstly, proving responsibility of plaintiffs should be reduced As above mentioned, to prove causation in environmental tort would be difficult for plaintiffs Therefore, in purpose of protecting plaintiffs, lawmakers should require defenders to prove that they are innocent parties They might use the strict liability in most of environmental tort types that requires companies strictly follow and reduce environmental risks
Secondly, law makers should codify the causation proving model Due to difference in opinion of judges, judgements might be changed sharply One causation model which might be presented in a precedent or regulation might help judges Based on the Brennan’s theory in 1988, he suggested scientific evidence used to give independent expertise to courts on complicated cases not be used as an obvious and only evidence 123 He suggested that the pollutant would be presented harmful until proven safe According to this suggestion, the court should award damages for harm allegedly caused by the release of a pollutant, costs include the future cost of control, as sources reduce their emissions in order to avoid future litigation The liability for past harm should be greater than the cost of future control
Citizens can seek legal action (injunction) to halt environmental damage caused by violations of environmental laws or harm to public resources if government agencies fail to adequately investigate In such cases, the defendant bears liability for reasonable repair costs However, the burden of resolving scientific uncertainties lies primarily with the regulatory agency, and legal challenges typically arise only in response to violations Therefore, strict adherence to existing environmental regulations is essential.
123 Troyen A Brennan, ‘Causal Chains and Statistical Links: The Role of Scienfitic Uncertainity in Hazardous - Substance Litigation’, Cornell Law Review, 73.463 (1988), 469–533
124 Donald N Dewees, ‘The Role of Tort Law in Controlling Environmental Pollution’, Canadian Public Policy / Analyse de Politiques, 18.4 (1992), 425–42 assessed before adopting this plan to ensure that they are not jeopardized as a result of the state using its discretion in enforcing the law
Finally, class action would be necessary in toxic tort litigation Some have proposed that if a person violates an environmental legislation or law and does considerable harm to a public resource, any citizen may seek an injunction to stop the harm and conserve the environment if the governmental agency has not adequately investigated the infringement 125 The defendant is only liable for reasonable repair costs Because the duty of addressing scientific ambiguity is mainly on the state that creates the regulations in the first place, the matter is not brought to court unless a violation occurs Existing environmental rules must be assessed before adopting this plan to ensure that they are not jeopardized as a result of the state using its discretion in enforcing the law In some case where the defendants' infliction of harm on a class of plaintiffs can be established with reasonable certainty, the class action procedure may provide useful deterrence
To conclude, some of the proposed legislative reforms to environmental tort law might allow tort to more fully supplement the activity of regulatory agencies Some of these may empower private individuals to act as a safeguard the environment when governments lack the means or political will to do so Even with reforms, the courts might continue to lag behind administrative agencies due to their ability to assess the health and ecosystem risks posed by the release of chemical pollutants As a result, I suggest that the purpose of a reformed tort system should be focused to support the regulatory system in cases where causation can be clearly proven which balance between remedying doctrinal tort limitations while respecting those that are external to the legal system, such as the cost of proving causation or the great scientific uncertainty regarding the effects of many pollutants An enhanced tort system should impose on certain polluters more thoroughly the full societal cost of their polluting behavior without creating unnecessary ambiguity The effect of such re- forms will be good when the role of tort is not changed
125 Vivian O Adler, ‘THE VIABILITY OF CLASS ACTIONS IN ENVIRONMENTAL LITIGATION’,
Ecology Law Quarterly, 2.3 (1972), 533–70
3 Verdict no 84/2017/DS-PT of the People's Court of Ba Ria - Vung Tau province (BR-VT) on Compensation for damage caused by environmental pollution
4 Verdict 84/2019/DS-PT dated July 30, 2019, of the People's Court of Bac Giang province
5 Verdict In re Agent Orange Product Liab Litig., 611 F Supp 1223 (E.D.N.Y 1985)
6 Verdict Allen v the United States, 588 F Supp 247 (D Utah 1984)
7 Adler, Vivian O, ‘The Viability Of Class Actions In Environmental Litigation’,
8 Alex Long, Torts : A Modern Approach, Carolina Academic Press (Carolina
9 Anderson, Dan R, ‘Environmental Risk Management : A Critical Part of Corporate Strategy’, The Geneva Papers on Risk and Insurance Issues and Practice, 27.2 (2002), 152–80
10 Banks, Sedina, ‘The “Erin Brockovich Effect”: How Media Shapes Toxics Policy’, Environmental Law & Policy Journal, 26 (2002)
11 Beever, Allan, ‘What Does Tort Law Protect ?’, Singapore Academy of Law Journal, 626.27 (2015), 626–42
12 Bernoulli, Daniel, ‘Exposition of a New Theory on the Measurement of Risk’,
13 Brennan, Troyen A, ‘Causal Chains and Statistical Links: The Role of Scienfitic Uncertainity in Hazardous - Substance Litigation’, Cornell Law Review, 73.463 (1988), 469–533
14 Bronner, Fred, and Robert de Hoog, ‘Social Media and Consumer Choice’,
International Journal of Market Research, 56.1 (2014), 51–71
15 Brown, John Prather, ‘Comment on Calabresi and Klevorick’s “Four Tests for Liability in Torts”’, The Journal of Legal Studies, 14.3 (1985), 629–32
16 ———, ‘Toward an Economic Theory of Liability’, The Journal of Legal
17 Calabresi, Guido, ‘Changes for Automobile Claims: Views and Overviews’,
University of Illinois Law Forum, 1967 (1967), 600–611
18 ———, ‘Some Thoughts on Risk Distribution and the Law of Torts’, The Yale Law Journal, 70.4 (1961), 499
19 Calabresi, Guido, and Alvin K Klevorick, ‘Four Tests for Liability in Torts’, The
20 Carstensen, Peter C, William M Landes, and Richard A Posner, ‘Explaining Tort Law: The Economic Theory of Landes and Posner’, ed by William M Landes and Richard A Posner, Michigan Law Review, 86.6 (1988), 1161
21 ‘Causation In Environmental Law: Lessons From Toxic Torts’, Harvard Law
22 Coase, R H, ‘The Problem of Social Cost’, The Journal of Law & Economics, 3 (1960), 1–44
23 Cooke, James, Law of Tort (Harlow(England): Person., 2017)
24 Costanza, Robert, and Laura Cornwell, ‘The 4P Approach to Dealing with Scientific Uncertainty’, Environment: Science and Policy for Sustainable
25 Damian Carrington, ‘Microplastics Found in Human Blood for First Time | Plastics | The Guardian’, The Guardian, 24 March 2022
[accessed 29 March 2022]
26 DeSanto, Robert S., ‘Environmental Audit’, in Environmental Geology
(Dordrecht: Kluwer Academic Publishers, 1999), pp 195–96
27 Dewees, Donald N, ‘The Role of Tort Law in Controlling Environmental Pollution’, Canadian Public Policy / Analyse de Politiques, 18.4 (1992), 425–42
28 ‘Doanh Nghiệp Việt Nam Tẩy Chay Vedan Để Ủng Hộ vụ Kiện Của Nông Dân’,
2010 [accessed 2 April 2022]
29 Đông Hà, ‘“Hồ Sơ” Xả Thải 14 Doanh Nghiệp vụ Cá Chết Trên Sông Chà Và - Tuổi Trẻ Online’, Báo Tuổi Trẻ [accessed 27 March 2022]
30 ‘“Đồng Lòng” Tẩy Chay Vedan | Báo Dân Trí’, Dân Trí, 2010
[accessed 2 April 2022]
32 Ebbesson, J, and Phoebe Okowa, Environmental Law and Justice in Context, ed by Jonas Ebbesson and Phoebe Okowa (Cambridge: Cambridge University Press, 2009)
33 Elahi, Manzoor, ‘Summary of Social Contract Theory by Hobbes, Locke and
34 Emma Newburger, ‘Fed Governor Anticipates Climate Change Guidance Coming for Big Banks’, CNBC, 2021 [accessed 3 April 2022]
35 Emons, Winand, ‘An Introduction to the Legal and Economic Theories of Torts’, 129.1985 (1993), 625–42
36 Fiddick, Laurence, ‘Beyond Gains and Losses: The Effect of Need on Risky Choice in Framed Decisions’, Journal of Personality and Social Psychology, 102 (2012), 1136–47
37 Herron, Daniel J, Elisabeth L Silvaggio, and Laura Powell, ‘The Evolution Of Foreseeability In The Common Law Of Tort’, North East Journal of Legal Studies, 35 (2016)
38 Hieu, Nguyen Thi Minh, ‘Boi Thuong Thiet Hai Ngoai Hop Dong Trong Bo
Luat Dan Su va Yeu to Loi’ (Đại học Quốc gia Hà Nội, 2019)
39 Jack, Judge, B Weinstein Nov, and Margaret A Berger, ‘Eliminating General Causation : Notes towards a New Theory of Justice and Toxic Torts’, Columbia
40 James L Kimble, ‘Conflicting Trends in Toxic Tort Liability’, Environmental Claims Journal, 2.2 (1990), 153–64
41 James R Hackney, Jr., ‘Judge Jack Weinstein and the Construction of Tort Law in America: An Intellectual History’, Northeastern University School of Law Research Paper, 240 (2015)
42 ‘Joint-Liability for Tort’, Columbia Law Review, 4.5 (1904), 367–68
43 Kim, Eun-Sung, ‘Chemical Sunset: Technological Inflexibility and Designing an Intelligent Precautionary “Polluter Pays” Principle’, Science, Technology, & Human Values, 33.4 (2008), 459–79
44 King, Joseph H Jr., ‘Reduction of Likelihood Reformulation and Other Retrofitting of the Loss-of-a-Chance Doctrine’, University of Memphis Law
45 Klein, Andrew R, ‘Causation and Uncertainty: Making Connections in a Time of Change’, Jurimetrics Journal of Law, Science and Technology, 49.1 (2008), 5
46 Kornhauser, Lewis A, and Richard L Revesz, ‘Sharing Damages among Multiple Tortfeasors’, The Yale Law Journal, 98.5 (1989), 831–84
47 Landes, William M., and Richard A Posner, ‘1 The Positive Economic Theory of Tort Law’, in The Economic Structure of Tort Law, 2014
48 McCann, Michael, and William Haltom, ‘Ordinary Heroes vs Failed Lawyers - Public Interest Litigation in Erin Brockovich and Other Contemporary Films’,
Law and Social Inquiry, 33.4 (2008), 1043–70