The Effectiveness of the Common Law Action in Redressing Environmental Damage of War Affected Areas: Redevelopment in the Post War Scenario

Abstract

The common law action in delict/tort in Sri Lanka is used to compensate ‘persons and property damage’ (traditional damage) caused by individuals/institutions. In redeveloping the war affected areas, damage may occur due to negligent and non-negligent acts (accidental and wilful) of local authorities and other institutions. Even though traditional damage may include ‘environmental damage’, it does not currently consider specifically in the light of delictual actions and therefore, the greatest contribution that can be given to environmental protection by these actions may get neglected. This opinion is more applicable in the absence of a clear statutory regime which assesses and compensates environmental damage which is caused by various activities that relate to development. It is needed to encourage redevelopment in a post war scenario to enhance the quality of life. However, the effectiveness of the delictual action must be strengthen to remedy the environmental damage that affects people under the development process in every respect because development issue involves competing interests. This paper argues that the common law action in delict plays a wider role to balance the interests of the parties in this regard. The analysis is based on a comparative study with selected jurisdictions which are the USA, UK and India.