Mass Torts & MNC’s Liability

What is Mass Torts?

In brief, ‘Mass Torts’ can be explained as ‘Such activity of the defendant, the harm caused by which is wide and a large number or sector of society gets affected simultaneously’. In other words, we can say that the cases of mass torts are somewhat different from those situations when only one or two persons are harmed.

In day-to-day life, we come across with the cases of mass torts. For example, Alcock v. Chief Constable of South Yorkshire Police (1991) 4 All ER 907 is one instance of such type. In Indian context, we can think of fire and smoke at Uphaar Cinema, Stampede at Kumbh Mela or Patna Air Crash. Such cases can be clubbed under two categories-

1. where the activity is dangerous or hazardous and a sizable number of people are prone to harm.

2. where the activity is prima facie harmless or recreational but people have assembled at the site on the invitation of the defendant.

Now, a question arises about what principle of liability should be applied in such cases? Should we treat these cases differently or number of victims should hardly change the nature of applicable principle? The trend is in favour of applying the principle of strict liability (in some cases absolute liability). The justification for this might be advanced on the grounds of harms to large number of people, nature of activity and the increased standard of care.

About the relationship of mass torts and industrialization, there are certain striking features which differentiates it from the other ordinary cases of torts-

1. As the effects arising from the industrial hazards are prolonged and uncertain, it is almost impossible to exactly ascertain the amount of damages.

2. The responsibility of National Government in a welfare state to act as the guardian of people’s lives and properties is activated because such cases usually involve a large section of society. Moreover, ordinarily that section is poor, powerless and illiterate and hence, hardly in a position to act on its own.

3. Not natural persons but legal persons are behind theses activities (companies and that too MNC’s in certain cases) it becomes difficult to find out the forum for suing the dependant company because of its web of corporate office.

Salient Features/Characteristics of Mass Torts

The salient/defining characteristics of a mass tort includes –

1. numerous victims who have filed or might file damage claims against the same defendants.

2. claims arising from a single event or transaction, or from a series of similar events or transactions spread over time.

3. questions of law and fact that is complex and expensive to litigate and adjudicate – frequently questions that are scientific and technological in nature.

4. important issues of law and fact which are identical or common to all or substantial subgroups of the claims.

5. injuries that are widely dispersed over time, territory and jurisdiction.

6. caused indeterminacy – especially in cases involving toxic substance exposure – that precludes use of convential procedures to determine and standards to measure any causal connection between plaintiff’s injury and the defendant’s tortuous conduct.

7. disease and other injuries from long delayed latent risks especially in cases involving toxic substance exposure.

Problem before Courts/Litigants under Mass Torts

The mass tort litigation presents some unique problems for the courts and the litigants. Some of them are as follows –

1. The large number of litigants, plaintiffs as well as defendants, makes mass litigation burdensome. These large numbers significantly complicate the processing and resolution of litigation with procedures that evolved primarily for ‘Simple’ lawsuits – i.e., those involving one or two parties on each side.

2. Mass tort litigation can involve enormous personal, financial and political stakes for parties on all sides. It also imposes large burdens on the courts system in terms of both public costs and concentration of cases within particular jurisdictions.

3. Timing is critical for plaintiffs with significant disabilities and expenses. Yet as the number of claims increases, the need of plaintiffs for prompt compensation becomes harder to satisfy. The complex issues and large number of parties can result in long delays in processing and resolving cases.

4.  Litigation involving toxic torts presents particular difficulties centering on issues, both technical and legal, about the causation and documentation of injuries and diseases. The frequently long latency period between exposure to a toxic substance and injury, together with the need to identify the products to which exposure occurred, further complicates legal and technical issues.

5. Finally, mass litigation presents special treats to the fairness of our justice system, raising the possibilities that outcomes will be inconsistent; that defendants faced with a great number of claims may be forced to make significant settlements even when liability is unlikely; that defendants can avoid responsibility by aggressively pursuing litigation; that compensation is not related to the seriousness of injuries; and that the burdens on defendants might not accurately reflect their relative culpability.

Nature of the Trial under Mass Torts

In the last decade, mass trials have come to be seen in much of the academic literature as the proper and efficient answer to mass torts in our mass society. Burdened by lengthening dockets, federal judges have begun to experiment with mass trials to try many claims at once. In this way, we appear ready to reject a centuries old tradition of individual claim autonomy in tort litigation, involving substantial personal injuries or wrongful death. Insufficient attention has been paid, however, to the impact of mass trials on the fairness of such proceedings to individual plaintiffs, on the relationship of counsel to client, on the role of the judge in coercing settlement, and on the temptation to distort substantive law to skirt important procedural obstacles to mass trials. As explained below, all of these concerns argue against using mass trials to adjudicate mass tort cases. The better course is to coordinate and consolidate pretrial discovery and motions practice but then individually try the tort cases in an appropriates venue. After a number of cases have been tried substantial incentives will operate to encourage the private settlement of many of the remaining claims.

Multi-National Company (MNC’s) liability

Under the mass torts, there are certain striking features on the grounds of which a MNC should be held liable. They are as follows –

1. MNC’s by virtue of their global purpose structure, organization, technology, finance and resources have it within their power to make decision and take actions that can result in industrial disasters of catastrophic proportion and magnitude. This is particularly true with respect to those activities of the MNC which are ultra hazardous or inherently dangerous.

2. Key management personnel of multi-nationals exercise a closely-held power which is neither restricted by national boundaries not effectively controlled by international law.

The complex corporate structure of the multi-national , with networks of subsidiaries and divisions, makes it exceedingly difficult or even impossible to pinpoint responsibility for the damage caused by the enterprise to discrete corporate units or individual in reality, there is but one entity, the monolithic multinational, which is responsible for the design, development and dissemination of information and technology worldwide, acting through a forged network of interlocking directors, common operating systems, global distribution and marketing systems, financial & other control. In this manner, the multinationals carries out its global purpose through thousands of daily actions, by a multitude of employees and agents. Persons harmed by the acts of the multinational corporation are not in a position to isolate which unit of the enterprise caused the harm, yet it is evident that the multinational enterprise that caused harm is liable for such harm. The multinational must necessarily assume this responsibility for it alone has the resources to discover and guard against hazards and to provide warnings of potential hazard. This inherent duty of the multinational is the only effective way to promote safety and assure that information is shared with all sections of its organization and with the nations in which it operates.

3. A MNC has a primarily, absolute and non-delegable duty to the persons and country in which it has in any manners caused to be undertaken any ultra hazardous or inherently dangerous activity. This includes a duty to provide that all ultra hazardous or inherently dangerous activities be conducted with the highest standards of safety and to provide all necessary information and warnings regarding the activity involved.

For example, the defendant Multinational Union carbide breached this primary absolute and non-delegable duty through its undertaking of an ultra hazardous and inherently dangerous activity causing unacceptable risks at its plant in Bhopal, and the resultant escape of lethal MIC carbide further failed to provide that its Bhopal plant met the highest standards of safety and failed to inform the Union of India and its people of the dangers therein. Defendant Union Carbide is primarily and absolutely liable for any and all damages caused or contributed to be the escape of lethal MIC from its Bhopal plant.

Findings of the Problem

A mass tort is such activity of the defendant which causes harms to a large number/sector of the society.

Under mass torts, a MNC should be held liable, if it –

 i. results in industrial disasters by virtue of their global purpose.

 ii. fails to promote effective safety measures.

iii. fails to share the information with all sectors of its organization.

 iv. fails to share information with the nations in which it operates.

 v. breaches the primary, absolute and non-delegable duty to persons & country is which ultra-hazardous activities are carried out by them.

Conclusion
From the overall discussion, we can conclude that activity of the defendant causing harm to a large number