Doctrine of absolute liability: Vizag gas leak angle

Reading time: 8-10 minutes.

Adisastrous, ill-fated, inadvertent leakage of styrene gas at 3 am on 7th of May, killed 11, critically injuring 25, with over 200 being hospitalized and more than 1000 falling ill. A chemical gas leak at a plastic plant ‘LG Polymers’ in Vishakhapatnam’s RR Venkatapuram village in Andhra Pradesh raised raging trepidations and immediate disquiet that this might be a recurrence of the Bhopal Gas Tragedy of 1984 for its uncanny parallels. Even though the leak of styrene gas proved to be less hazardous than the Union Carbide Factory, it still caused a mass disorder and havoc in the region. India follows a rigorous degree and standard of liability for cases arising out of hazardous industrious leaks that cause harm to the people, such as the LG Polymers leak.

Foreign Company LG Group from South Korea is the parent company of LG Polymers from Visakhapatnam. The plant was situated amidst a residential area. The officials from LG Polymers have claimed that the gas leak is not toxic and hazardous. However, it is essential to understand the brevity of the effects styrene brings with it, irrespective of the death it has brought. Even though the gas looks harmless, it can cause rapid Central Nervous System depression and knock the victim to coma.

The flammable gas is colourless with a light yellow tint, primarily used in the production of plastic and resin. Breathing-in a styrene infected atmosphere can cause infection of the respiratory tract, which might build-up fluid in the lungs, leading to styrene sickness. Several epidemiologic readings suggest there may be an association between styrene exposure and an increased risk of leukaemia and lymphoma though the evidence is inconclusive. Just like methyl isocyanate in Bhopal, styrene causes long term damage to one’s foetus, and it is a human carcinogen, causing chromosomal aberration.

What is Absolute Liability?

Rapid and unprecedented industrial development has brought in its wake myriad pernicious health problems. The enterprises are social units with rights and duties towards the public and holds responsibility not to harm the health of man and nature. They have an “absolute non-delegable duty” to the community.In Hoy v. Miller, Justice Golden defined Absolute Liability with precision, ‘absolute liability is a liability without fault – a liability for which there is no excuse’.

Absolute liability is a tortuous element. This principle upholds the duty of care owed to the public by enterprises that produce or use hazardous substances. Any establishment that is occupied with production and use of harmful substances must ensure that no harm is done to the residents of that area. If anyone is harmed, then the establishment is absolutely liable,and no defence or exception can relieve them from such liability. Defence such as negligence, fault, Act of God, mistake, or any other cannot be applied to seek exemption from the compensation and liability.

In India, the principle of Absolute Liability is an inalienable part of Article 21 of the Indian Constitution, and NGT Act 2010, under Section 17, incorporated the no-fault law. 

Essentials

  1. Hazardous Element:Hazardous and Ultra Hazardous elements are a pre-requisite for the application of Absolute Liability. Only when the element dangerous to one’s health and the environment is putting lives at risk, this principle can be applied. Elements like toxic gas, vibrations, explosives, etc. are examples of hazardous elements.
  2. Escape of element not necessary:Unlike Strict Liability, escape of the element is not required; the rule will apply to those injured within and outside the premise.
  3. No defense: No kind of exception can be given to cases that fall under the purview of Absolute Liability—exceptions like negligence, fault, Act of God, Act of a stranger, etc. The enterprises will be absolutely liable.
  4. Natural and Non Natural use of land: Unlike Strict Liability, this principle applies to cases emerging out of the use of non-natural as well as natural properties.
  5. The number of deaths is not relevant: For assessing the extent of liability and compensation to be paid, the number of deaths is irrelevant.

Evolution of this concept

Intending to maximize the limits and degree of the rule of strict liability as laid down by Justice Blackburn in Ryland v. Fletcher, the Indian Judiciary decided to follow the highest standard of responsibility for an incident such as this. Therefore, deciding to modify and amend the 19th Century Principle.

The Principle of Absolute Liability was primarily formulated and verbalized in M. C. Mehta v. Union of Indiain 1986 and later was developed in the Bhopal Gas Tragedy case.

M. C. Mehta v. Union of India:

In the year 1985, Oleum Gas leaked from Shriram Foods and Fertilizers Industries, Delhi, killing one and injuring several. The judges refused to apply the principle of Strict Liability and rendered it obsolete because it is ‘woefully inadequate’ to protect the rights of the citizens.  Thus an innovative remedy was evolved by the Supreme Court, which was indirect recognition and application of the ‘polluter pays principle’. Absolute liability was thus articulated. The Court also made the measure of accountability compatible with the capacity of the enterprise. This pronouncement was later upheld in Charan Lal Sahu v. Union of India.

Justice P. N. Bhagwati meticulously observed; “We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of the hazardous or inherently dangerous nature of the activity which it has undertaken.”

Union Carbide Corporation (UCC) v. Union of India

In 1984, before the leak in Delhi, Methyl Isocyanate or MIC leaked from the UCC Unit in Bhopal. Over three thousand people lost their lives, and even after 36 years, the effects of the leak can be seen in deformed foetuses and retardation in the mental capacity of the victim residents. The Bhopal tragedy has amplified Indian and world perception of the threat to human health and the environment posed by the production of noxious chemicals. The judgment and principle derived from Oleum Case were applied and upheld in the case of Bhopal.

In furtherance to the principle, the Indian Legislature also passed the Public Liability Insurance Act, 1991, to ensure speedy compensation. The Act makes it mandatory for enterprises manufacturing hazardous elements to take insurance under this Act so that it’s easier to give interim relief to the victims of the tragedy.

Absolute liability W.R.T Vizag gas leak

The leak in Visakhapatnam is unfortunate. It caused the death of eleven, hospitalizing and injuring several others. Jurists and Legal Luminaries say that the Indian Laws are clear on this one. They claim that LG Polymers are absolutely liable for the leak and they have to compensate for the same. No defence of negligence, fault or act of god or stranger will be granted.

In lieu of the same, the Andhra Pradesh Government announced Rs 1 crorecompensation to the family of the deceased, Rs 10 lakhs to the ones under treatment and Rs 1 lakh for the hospitalized.  However, these are ex gratia payments, separate from final liability. The National Green Tribunal also announced an interim compensation of Rs 50crore.

The Apex Court in its judicial pronouncements made it rather clear that the compensation or liability will be adjudged on the capacity of the firm or factory, so it acts as a deterrent for such accidents from happening again.

Apart from the firmbelief in the liability, advocates like Karuna Nandy have been advocating for an independent investigation in the case of Vizag leaks. The grave nature of the gas and the incident is to be closely monitored because the officials of LG Polymers have been claiming that the gas is not dangerous and cannot cause any detrimental health issue, but reports prove otherwise. She says, ‘there is a potential whitewashing of LGP’.  

The victims and their families can claim compensation through a tort claim or claim under the PLIA, 1991. 

A tort claim can be filed in civil courts based on absolute liability. The civil suit will further help in the joinder of parties, help consolidate and unify the case to assess the final degree of damage. It is also to be kept in mind that LG Polymers has a parent company in South Korea, just like UCC, Bhopal.

Claims can be filed under the PLIA 1991. This Act has made it mandatory for industries with hazardous chemicals to hold insurance. The victims can file a claim with the local Collector within five years of the occurrence of the accident or leak. The Collector then assesses the applications and damage, specifies the compensation amount that is to be paid immediately. The objective is to provide speedy compensation to the victims, and they can still approach the Court for higher compensation.

Critical analysis

LG Polymers is observed to be Absolutely Liable to the victims of the gas leak. The case is to be carefully scrutinized because it holds similarities with that of the Bhopal Tragedy. LG Polymers is a subsidiary company, with the parent company in South Korea, and this can bring problems in the litigation, just like Bhopal Tragedy. All the essentials of the principle are fulfilled in the case of Vizag leaks. The plant held hazardous substances that led to a disastrous leak because of the mismanagement of the same, and for all these reasons, LG Polymers is absolutely liable.

The principle of Absolute Liability does not recognize defence and exemptions, and therefore, one cannot be absolved off their liabilities. LG Polymers took the defence of Covid19 or the spread of Corona Virus as an Act of God for their mistake and inability to manage the plant. Furtherance to which, they claimed that the plant was closed for 40 days due to the lockdown. They have taken several defences like, the number of deaths is not large, and that the gas has no potential effects on health.

These defences, however, cannot be considered because Absolute Liability does not view the number of deaths; it is majorly concerned about the hazardous element and its effect on the ones exposed to it. The gas, however, is found to be life-threatening, with tendencies to deform foetuses, develop cancer and cause Central Nervous System depression. Only the factory has the resource and man-power to discover and guard against hazards or dangers and to provide a warning against potential risks.

Conclusion

India has a history of lethal gas leaks leading to a permanent disability of the future generations. The same may or may not be expected off the Vizag leak because styrene gas is said to have properties for a potential threat. However, tort laws in India were never codified or developed, which led us to follow the English Common Law, but the Oleum case helped modify the same. With the development of the principle of Absolute Liability, Indian Judiciary has seen a revolutionary transformation in the tortuous laws.

The above-mentioned pronouncements of the Indian Court have declared it in unequivocal terms that the ‘Absolute Liability’ is well established and has become part of the Indian Environmental Jurisprudence without any statutory mandate. The courts have been very responsive and innovative in this aspect. They have always rescued those who have suffered due to toxic chemical and pollution, be it man or nature. By asking the polluters and emitters to the task is merely performing their constitutional obligation.

Anyone who holds or carries hazardous activities has Absolute Liability under civil and criminal law. Under civil law, they are required to pay compensation for the death of victims, for discomfort, recovery and the environmental damage. Criminally, they shall be punished under environmental statutes such as the Environmental Protection Act of 1986, etc.

Author: Preethi Sivaraman from Symbiosis Law School, Hyderabad.

Editor: Yashika Gupta from Rajiv Gandhi National University of Law, Patiala.

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