Compensating Toxic Torts in Kenya: Overcoming the Causation Dilemma
By Hannah Wamuyu, Collins Odote and Stephen Anyango: this article was first published on The Journal of Sustainable Development, Law and policy
Environmental degradation is at unprecedented level in the world. One of the common causes of environmental degradation is pollution which as a consequence leaves contaminants in the environment. The contaminants in the environment cause many diseases to human beings therefore compromising the ability of the environment to support a healthy life. Appropriate legal mechanisms need to be employed in order to make those responsible for pollution liable for environmental damage. Environmental liability frameworks provide an avenue through which claims are verified in order to ascertain proper claimants as well as identifying the polluters who should be made to pay for harm suffered by the victims of pollution. Toxic tort plaintiffs often face challenges when proving the link between the polluter’s activities and their injuries. The inability to prove causation leads to dismissal of cases leaving the victims of pollution without compensation. The article discusses the pollution problem in Kenya and the causation dilemma that must be tackled by the victims of toxic torts in order to be compensated for their injuries. The article argues that to strengthen compensation outcomes, causation challenges must be addressed within any existing environmental liability framework. The article recommends adoption of a realistic approach by the court when dealing with causation challenges rather than a rigid application of the common law principles which do not favor the process of proving causation for toxic torts. The article proposes an administrative compensation system to complement the adversarial court system and the imposition of strict liability doctrine for polluters responsible for environmental damage.
Toxic torts are attributable to pollution in many forms. Water, air and land pollution are the common forms of pollution that have been given attention in Kenya.
Water pollution is the introduction into fresh or ocean waters of chemical, physical, or biological material that degrades the quality of the water and affects the organisms living in it.
The pollutants may range from dissolved or suspended solids to discharge of persistent toxic pollutants such as pesticides, heavy metals, and nondegradable, bio accumulative and chemical compounds.
3 Most water sources in the country are degraded due to unsustainable land and water use practices such as industrial pollution and human waste.
4 The effect of this pollution has adverse impact on human health and the environment. The contaminated water continues presenting a perfect environment for diseases and also diminishes sources of water from which people can access for safe use. Air pollution causes accumulation of substances in the atmosphere of substances that, in sufficient concentrations, endanger human health and the environment.
5 The causes of this type of pollution are: burning of solid wastes, industrial processes and transportation which produce pollutants such as carbon monoxide, hydrocarbons, nitrogen oxides, particulates, sulphur dioxide, and photochemical oxidants.
6 Air pollution a lead cause of respiratory diseases such as chronic obstructive pulmonary disease (COPD), lung cancer, pulmonary heart disease and bronchitis.7 Kenya’s air condition in most major cities and towns has been rated as some of the most polluted in the world and this has had a major effect of have a high disease incidence with respect to respiratory illnesses.8 The following table shows an outlook of environmental diseases suffered in Kenya with respiratory illnesses recording the highest number of disease incidence compared to other environmental diseases: