Khóa luận tốt nghiệp: The environmental tort law

SCHOOL OF LAW – HANOI VIETNAM NATIONAL UNIVERSITY CIVIL LAW DEPARTMENT

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CAO HOANG MAI

THE ENVIRONMENTAL TORT LAW

GRADUATION THESIS

HANOI – 2022

SCHOOL OF LAW – HANOI VIETNAM NATIONAL UNIVERSITY CIVIL LAW DEPARTMENT

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CAO HOANG MAI

THE ENVIRONMENTAL TORT LAW

GRADUATION THESIS

SUPERVISOR: Doctor Nguyen Thi Phuong Cham

HANOI – 2022

GUARANTEE

I hereby declare that this paper is my own researching The researche and materials used in the report have clear sources, the research results are my honest work

Sincerely!

GUARANTEE

Cao Hoang Mai

CHAPTER 1 TORTS IN THEORIES 9

1.1 The Concept of Tort Liability 9

1.2.Elements of Tort Liability 11

2.1.Economic Tort Theories in clarifying tortfeasor and causation 19

2.2.The concept and Function of Toxic Tort Law 22

2.2.1.Definition of toxic tort 22

2.2.2.Characteristic of toxic tort 23

2.3 Relationship of Toxic Tort Law and the economic tort theories 31

CHAPTER 3 VIETNAMESE'S LAW IN ENVIRONMENTAL POLLUTION TORT LIABILITY 33

3.1.The 2015 Vietnamese Civil Code 33

3.2.The 2020 Environmental Protection Law 37

3.2.Case stydy in Environmental Liability 39

3.2.1Case 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 39

3.2.2 Case 84/2019/DS-PT dated July 30, 2019, of the People's Court of Bac Giang province 41

3.2.3 Analysis 2 hereinbefore verdicts 43

3 Controverise of Vietnamese regulations 48

CHAPTER 4 COMPARATIVE LAW IN THE US THROUGH CASE STUDIES AND PROPOSAL SOLLUTIONS 51

4.1 Case study in comparison with 2 US verdicts 51

4.1.1.The In re Agent Orange Product Liab Litig., 611 F Supp 1223 (E.D.N.Y 1985) 51

4.1.2.Allen v the United States, 588 F Supp 247 (D Utah 1984) 53

4.1.3.Analyze 55

4.2.Toxic Tort Risk And Suggested Methods For Companies To Manage Toxic Tort Risks 56

4.2.1 Toxic risks 57

4.2.2 Cost of damage to a victim 58

4.2.3 Reasons why companies avoid toxic tort risks 67

4.2.4.Reason for managing risk 71

4.2.5 Method to manage risk 75

4.3 Regulation Recommendations 79

References 81

INTRODUCTION

1 Rationale for choosing this topic

Since 2020, the Federal Reserve System (FED) and the World bank have published a lot of requirements on lending which are related to climate change According to changes at both national and international levels, the Vietnamese regulation would change to catch up with the international law

Currently, in Vietnam, the number of environmental tort cases is low and the environment is not considered as important a factor as it should be This low proportion of environmental tort litigation may be because Vietnamese business owners tend to disregard this aspect of the law when they run a business In most environmental tort cases, plaintiffs would only claim for property damages, for example in the Vedan case or Fomosa case

However, as people increasingly pay more attention to the environment and their health, the environmental tort is developing rapidly not only around the world but also in Vietnam Especially, when the 2020 Vietnamese Environmental Law replaced the 2014 Environmental law, a substantial number of new regulations impacted on the business market and local companies

Thus, the reason for choosing this topic is not only to find the best method to protect the environment, but also to protect enterprises The natural environment and its sustainability can impact society at a large scale, especially to future generations Thus, investigation of environmental tort law is directly relevant to ensuring better protection of the environment From the perspective of businesses, legal changes related to the environment can heavily affect the way companies operate, and mitigating risks that come with new requirements is highly important This thesis aims to explore and suggest to businesses effective methods to balance the spending on managing environmental tort’s risk and their economic benefits

2 Recent research

Recently, most of the researchs in Vietnam on environmental tort is focused on its academic and social aspects of law Some Vietnamese researchers have believed that changing regulations would be the best way to protect the environment and punishments might be a considerable method to prevent or alleviate pollution from

businesses However, changing the regulation itself may not be the only means available to achieve this objective, there are various other methods to protect the environment which is related to tort litigation One notable theory is the economical tort theory In this thesis, the economical tort theory will be analyzed and discussed to suggest effective methods for companies to manage enviromental tort risks

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

4 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

CHAPTER 1 TORTS IN THEORIES

Tort law1 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 law2 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)

<https://doi.org/10.1017/9781108635226>

behavior but also might be brought a lawsuit against a wrongful behavior person3 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 tie5 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 omission6 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 rectify7 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

“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 19th 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 remedy8

1.2 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 system10 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 victim11 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

To clearly explain the 4 elements of tort law, the below map would be used to illustrate types of tort law:

1.2.1 Illegal act

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 theory which is a very popular theory in Common law The duty of care establishes

RYLANDS v FLETCHER

PUBLIC NUISANCE

PRIVATE

NUISANCE TRESPASS NEGLIGENCE

Who can sue?

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

Person in possession

Anyone who can prove breach of duty damage

Who can be sued

Person in control of non- natural user on land, usually landowner

The

perpetrator The creator or adaptor

Person committing act of trespass

Person causing damage

Directness Direct or Indirect Direct or

Indirect Only indirect act Direct

Direct or Indirect act

Fault No need to prove Must be proved

Must be proved unreasonableness

Strict liability -> Not to prove

Must prove breaching of standard of care

Personal

Injuries Probably Yes

Only to people with a proprietary interest in land affected

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 care12 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 society13 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

1.2.2 Damage

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

12 ‘Donoghue v Stevenson [1932] AC 562’

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, …

1.2.3 Causation

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 cause15 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

1.2.4 Fault

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 <http://www.jstor.org.ezproxy.snhu.edu/stable/24644106>

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

1.2.5 Defendant’s liability

Although defendant’s liability is not a pillar in tort, however, it is a remedy for an illegal act of tortfeasor Herein this research, causations in toxic tort are usually numerous According to Partial liability theories, in multi causation suits, liability of tortfeasors should be divided according to their proportion and the sum of their maximum amount of liability would be social loss.20 The goal of compensate in tort case is perfectly the same as degree of well-being that would have prevailed but for the harm of victims

The justification for joint and several responsibility is when numerous tortfeasors are accountable to plaintiffs, each tortfeasor has a little contribution on causing victim damage According to the deep-pocket concept, in traditional liability theory, the claimant would typically sue the tortfeasor with the most resources and money.21 Although it may be convenient for the plaintiff in a claim for plaintiff's harm, it may be unreasonable for a tortfeasor since tortfeasor is required to compensate for all other harm caused by other tortfeasors

Joint tort depends on a combination of activities, a shared plan, and a violation of a joint obligation in a multi-causation tort claim.22 To establish joint-responsibility, the obligation of each tortfeasor for the overall damages is typically based on

18 Emons

19 Hieu

20 Lewis A Kornhauser and Richard L Revesz, ‘Sharing Damages among Multiple Tortfeasors’, The

Yale Law Journal, 98.5 (1989), 831–84 <https://doi.org/10.2307/796581>

21 William L Prosser, ‘Joint Torts and Several Liability’, California Law Review, 25.4 (1937), 413–43

<https://doi.org/10.2307/3476762>

<https://doi.org/10.2307/1109462>

intentional participation, which is easily and clearly established In this case, the tortfeasor must not only conduct with joint intention, but also makes no difference whether or not their actions combine to produce a single negative affect Furthermore, even when collaboration in judgmental attitude is lacking, there is joint-liability where there is single misbehavior of distinct individuals that results in a single consequence causing damage Additionally, if the damage is a reasonable and probable result of the defendants' respective negligent acts, or whether the level of injury is much in excess of what a reasonable man might be expected to foresee, all defendants should be liable for the whole damage which should be in a joint case Therefore, even if a defendant is responsible for a small amount of damage, this defendant can end up paying for total damage, before contribute to other tortfeasors

Lands and Posner proposed the no contribution liability theory, which determines joint and several responsibility.23 In terms of negligence, this no-contribution rule is comparable to a predetermined share role in which an actor's significant part equals the calculation of the possibility that she would be held jointly or severally responsible and therefore responsibility for the whole loss According to the no-contribution hypothesis, for compensation to be effective, at minimum one of the probability that actors attribute towards the risks of being held liable for the full harm must be equal to one If each actor's assessment of his likelihood of being found accountable was known to all other actors, there would be absolutely one However, if the sum of these risk is less than one, the fractional share rule would be used.24 A divergence between the private objective faction and the social objective function is only permissible under strict responsibility if the actor contemplating dumping more than the socially optimal level suffers the whole increase in harm produced by such a deviation As a result, it will occur only if each actor believes that the defendant would likely hold totally liable for the entire amount of damages

Therefore, under this joint and several liability theory, negligence would occur with standards of care specified at socially efficient values, showing that any unilateral

23 John Prather Brown, ‘Toward an Economic Theory of Liability’, The Journal of Legal Studies, 2.2

(1973), 323–49 <http://www.jstor.org.ezproxy.snhu.edu/stable/724056>

24 Paras Sharma, ‘Economic Analysis of Tort Liability’, SSRN Electronic Journal, 6.3 (2020)

<https://doi.org/10.2139/ssrn.3623867>

share rule will be effective while other rules will not On the other hand, strict liability and demonstrate that none of present distribution rules are efficient, but that effective apportion rules can be constructed.25

25 Kornhauser and Revesz

CHAPTER 2 THE THEORY OF ENVIRONMENTAL POLLUTION LIABILITY

2.1 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

26 Smith

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

Based purely on economic benefit, when a company makes a business decision, they would choose a decision that brings the highest financial benefit for themselves The businessperson always tries their best to determine and detect that between following rules or regulations and not doing so and other choices which would be the best choice that brings the highest benefit for them One of the significant rules in doing business is that to raise the financial benefit, the cost has to be declined as much as possible

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 parties32

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 <https://doi.org/10.2307/794261>

30 Hieu

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 theory35 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

<http://www.jstor.org/stable/724810>

34 William M Landes and Richard A Posner, ‘1 The Positive Economic Theory of Tort Law’, in The

Economic Structure of Tort Law, 2014 <https://doi.org/10.4159/harvard.9780674864030.c1>

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 <https://doi.org/10.2307/1289163>

2.2 The definition, concept and function of Toxic Tort Law

2.2.1 Definition of toxic tort

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

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

2.2.2 Characteristic of toxic tort

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)

den-luat-thuc-dinh-cua-Viet-Nam.html> [accessed 16 March 2022]

<http://lapphap.vn/Pages/TinTuc/210922/Boi-thuong-thiet-hai-do-o-nhiem-moi-truong -tu-goc-nhin-ly-thuyet-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

<https://doi.org/10.1111/j.1747-4469.2008.00131.x>

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

<https://doi.org/10.2307/1228596>

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 inefficient44 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

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

44 Jack, Nov, and Berger

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 <https://www.jstor.org/stable/24785964>

48 Rhee

plaintiffs estimated chance of surviving or recovering from an existing illness or injury, absent the malpractice, is 50% or less, some courts have concluded that proximate cause under the traditional definition is lacking

…

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!

Bookmark not defined

Although the toxic tort law has various issues in litigation, this remedy is useful in risk management and finding justice According to Weinstein, litigation would be the best method to force parties talk and listen to each other During the litigation period, both plaintiffs and defenders would try their best in finding evidence to protect their benefits However, negotiation would be the best way to find justice and fair for plaintiffs.49 By negotiating, both parties would peruse the other party in order to protect their right and benefit They would limit the administrative cost for long period of litigation, for attorneys who usually want to prolong the litigation period in purpose of raising up their attorney’s fee, and so on In addition, due to the difficulty in proving causation in toxic tort suits, plaintiffs might not have much chance in being compensated They might lose during litigation Therefore, mediation would be the better choice for them which would be quicker and simpler in comparison This method is used in a lot of cases in reality.50

c Liability of parties in toxic tort cases by using economic theories

To deeply analyze the toxic tort which is the main part of this thesis, liability of tortfeasor would be discussed in the following paragraphs To find the liability of polluter or tortfeasor, regulations would play an important role In this days and ages, toxic risk management regulations are based heavily on the non-economical theories and scientific methods which are used to discover the risk-management, cost-benefited According to those theories, law makers suggested that toxic tort liability

should be based on “precautionary principle”, “polluter pay principle”.51

49 Jeffrey B Morris, ‘Jack B Weinstein: Judicial Entrepreneur’, University of Miami Law Review, 69.2

(2014), 393–428 <https://heinonline.org/HOL/P?h=hein.journals/umialr69&i=413>

50 Sedina Banks, ‘The “Erin Brockovich Effect”: How Media Shapes Toxics Policy’, Environmental

Law & Policy Journal, 26 (2002)

51 Eun-Sung Kim, ‘Chemical Sunset: Technological Inflexibility and Designing an Intelligent

Precautionary “Polluter Pays” Principle’, Science, Technology, & Human Values, 33.4 (2008), 459–79

<http://www.jstor.org/stable/29734048>

In relation to the toxic tort law, in purpose of finding the liable tortfeasor, a common international principle which is The Polluter Pays Principle has been influencing and shaping national and international regulations According to basic theory of tort law that nobody ought to have the right to do harm to others without being obligated to compensate the victims This appears to be especially highly plausible when the polluter makes a profit from the contaminating activity and pollution is a reasonable and predictable side consequence of the activity The polluter is defined as the one who creates unfavorable changes through pollution and hence

“causes” the situation – the “tortfeasor”.52 In this view, the polluter becomes a liable party in meeting environmental standards at their own expenses, paying for cleanup, fees, fines, penalties, or taxes To begin, there must be certain constraints on responsibility from the start We must all accept some pollution because society cannot operate without some amount of pollution Due to contributions to pollution via our regular actions, every individual is both a polluter and a victim of pollution Society usually accepts a certain degree of pollution As a result, corrective justice must imply that only environmental harm in excess of a certain acceptable limit is considered The idea of a tolerance limit is relevant here However, circumstances where the victim accepts the risk of pollution is excluded Victims who know about the toxic risk should be responsible for their choice Furthermore, if compensation is denied due to a temporal priority rule, it attempts to maintain disparities in environmental quality and socioeconomic situations More pollution in an existing contaminated location, where poorer groups of people usually dwell, is not compensated for There is no motivation for the polluter to recover the problem As a result, the time priority rule has the effect of keeping poor circumstances terrible, and it may even aggravate the situation to the disadvantage of the weaker segments of the community So if the consequence of a particular pollution is excusably unknown to the polluter, The Polluter Pays Principle is always a fair principle

In addition, based on the corrective justice, in purpose of finding justice for both polluter and victims, Calabresi and Klevorick used the Learned Hand test to

52 J Ebbesson and Phoebe Okowa, Environmental Law and Justice in Context, ed by Jonas Ebbesson

<https://doi.org/10.1017/CBO9780511576027>

establish the “four test for liability in tort” theory Calabresi and Klevorick presented that this test requires diligent and actual experience back testing, with special attention paid to differences in actual models There are various differences between accidents To achieve solely the primary accident cost reduction goal, minimizing overall accident and safety costs, performance of tests would be changed to adapt to the reality. 53 However, administrative costs must grow when the number of alternative methodologies utilized in different domains is multiplied The 4-test in finding liability is that (i) The wounded victim bears the loss unless the injurer knew, or should have known, at the time the victim acted, that the cost of avoiding the accident was less than the cost of the damage; (ii) The loss is on the injurer unless (after the accident), when a social decision maker strikes the balance, the victim's accident avoidance is less expensive than the cost of the accident; (iii) the loss is on the injurer unless the victim is in a better position to determine whether avoiding the accident would be less than the cost of the accident; (iv) the person was in a better position to determine whether the cost of avoiding an accident would have been less than the cost of the accident.54

In addition, to the precautionary principle, which is in order to resolve the causation-in-fact issue of the toxic suits This precautionary principle based on the “Prevention is better than cure” theory and the “end-of-pipe” technology which would be used to prevent risk.55 To follow this principle, a decision should be made based on the best possible scientific information to avoid as much risk as possible 56

Furthermore, by addressing ambiguity and severe damages, if a possible substantial risk exists, preventative techniques should be considered in order to react to rapid changes in technology progress Then, by encouraging individuals to identify and analyze ways of accomplishing stated goals, ecosystem implications also should be prioritized, especially when materials are nonrenewable resources, and the ultimate outcome is permanent Many people believe that technology is flexible, however, technology depend highly on standards and regulations would be for the purpose of

53 John Prather Brown, ‘Comment on Calabresi and Klevorick’s “Four Tests for Liability in Torts”’,

The Journal of Legal Studies, 14.3 (1985), 629–32 <http://www.jstor.org/stable/724261>

54 Guido Calabresi and Alvin K Klevorick, ‘Four Tests for Liability in Torts’, The Journal of Legal

Studies, 14.3 (1985), 585–627 <http://www.jstor.org/stable/724260>

55 Kim

Journal of the Indian Law Institute, 52.3/4 (2010), 467–83 <http://www.jstor.org/stable/45148535>

protecting the society that this technology would impact on New technology would effect on the society in very complex way since it even could not come back to itself.57

Finally, the cost should be made directly known to the individual who, if no precautions are taken, may be relied upon to bear the extra charges that may eventually come under the scope of the polluter pays principle So even though precaution is closely related to long term goals and numerous attempts to predict future events, it provides a sense of direction

Therefore, according to the Polluter Pay principle and the Precautionary Principle, Costanza and Cornwell developed the new approach in 1992, which merges a customizable social and environmental guarantee bonding mechanism with the precautionary principle.58 The primary principle behind the 4P is that potential polluters should demonstrate whether or not they have the financial means to pay for environmental pollution caused by their operation Nonetheless, the ultimate purpose of the 4P is to effectively prevent damages from occurring rather than just to collect compensation payments The 4P establishes a financial guarantee obligation corresponding to the worst-case scenario of probable actual damages on polluters The burden of evidence is thereby shifted from affected persons to polluters under the 4P If firms can demonstrate the quality of the products, regulatory agencies will recover the payment

To summarize, toxic tort law has unique elements that make settling toxic tort claims difficult The most challenging issue is establishing causality The second is related to proof of causation; taking a hazardous tort suit to judgment is expensive, time-consuming, and difficult owing to the demand for scientific testing and expert testimony Furthermore, the number of existing litigants, future victims, current injuries, and potential damages is enormous and frequently unexpected In contrast, a hazardous tort suit is often a class-action tort Because of these limitations, the cost of information in hazardous tort litigation has soared

57 Robin Williams and David Edge, ‘The Social Shaping of Technology’, Research Policy, 25 (1996),

865–99 <https://doi.org/10.1016/0048-7333(96)00885-2>

58 Robert Costanza and Laura Cornwell, ‘The 4P Approach to Dealing with Scientific Uncertainty’,

Environment: Science and Policy for Sustainable Development, 34.9 (1992), 12–42 <https://doi.org/10.1080/00139157.1992.9930930>

2.3 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) <https://doi.org/10.5070/L511018603>

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

60 Jack, Nov, and Berger

CHAPTER 3 VIETNAMESE'S LAW IN ENVIRONMENTAL POLLUTION TORT LIABILITY

3.1 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

Currently, the 2015 Civil Code contains new and revised provisions on the problem of Tort law; as a result, liability for compensation arises when: an act of infringing on life, health, or reputation occurs Causing harm to the participation, dignity, reputation, property, rights, and other legitimate interests of others; unless in the event of force majeure, the fault of the aggrieved party, or the consent of the parties As a result, the 2015 Civil Code requires assessment of all three aspects in order to establish culpability for tort: breach, damage, and blame Not only that, but by enabling the parties to agree on this matter, the legislator respects the free will principle of private law These general principles of tort have been regulated under Section 1, Chapter 20, 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: 1 Property damage;

2 Reasonable burial costs;

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

If the owner or the person to whom the owner has transferred possession or use, of a source of extreme danger is at fault for allowing the unlawful possession or use of the source of extreme danger, the owner, or the person to whom the owner has transferred possession or use, of the source of extreme danger, as the case may be, must compensate for the damage jointly

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

Therefore, under Vietnamese regulations, in toxic tort litigation, plaintiffs would take responsibility for proving their damages, causations, and defendants’ illegal act In case the defendant can not be proving that the defendant is in a legal exceptional situation or pieces of evidence from plaintiffs are not enough to prove their claim, the defendant would take responsibility for compensating for the plaintiff’s damage If a behavior does not violate the law and recent national standards, it might not be an illegal act under toxic tort

3.2 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

61 Kim

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

3.2 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 houses on the Cha Va River (Vung Tau) found that fish in cages had perished in large numbers, resulting in a total loss of 17 billion VND, with an estimated 30,000 dead fish pomfret and cobia)

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

The defendants contended that because they did not commit the act of dumping, or violate the law, they were not required to pay compensation Furthermore, the damages are irrational because the defendants think that the dead fish are saltwater fish and that the plaintiff's fish perished due to objective reasons

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 <https://tuoitre.vn/ho-so-xa-thai-14-doanh-nghiep-vu-ca-chet-tren-song-cha-va-1101478.htm>

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