Vishakhapatnam gas leak tragedy

Vishakhapatnam gas leak tragedy: Is it an absolute or strict liability?

Author: Aayushi Raghuwanshi

In amidst of lockdown, where hundreds of individuals are dying on a daily basis, a deadly gas leakage left the whole nation shocked, the question of civil liability arose not only on the LG Polymers where this gas was leaked but also on other enterprises who are engaged in such hazardous practises. The case of Vishakhapatnam gas leak tragedy is taken up by the National Green Tribunal [NGT]. This article looks at certain key principles of absolute and strict liability that may govern such instances of major accidents.

The deadly styrene gas leak which occurred in RR Venkatapuram village at Vishakhapatnam, in the LG Polymers, a subsidiary unit of LG chemicals and also a part of South Korea’s LG group has left the whole nation terrified. This toxic gas was so quickly spread over a radius of about 5km and has affected almost 5 nearby villages. So, was this gas dangerous? Yes. This gas is known as styrene gas(Ethenylbenzene), which very easily mixes with the air and is also a ‘possible’ cancer-causing agent, it contains “hazardous chemicals” under the Rule 2(e) and Entry 583 of the Schedule 1 of the Manufacture, Storage and Import of Hazardous Chemical Rules 1989, it has caused 11 causalities and has affected the health of almost 1000 individuals and the symptoms like nausea, headache, skin rashes, and eye irritation were found common. This gas leak has not only affected humans but has also badly affected the animals and the environment around them.

Here on, the National Green Tribunal (NGT) has taken Suo moto cognizance of the matter and formed a 5 member committee which was under a retired judge of the Andhra Pradesh High Court, to take charge and carefully inspect the incident, which caused damage to the environment and health of the people, and the most important part to compensate the victims, here the committee asked LG Polymers to deposit the amount of 50 crores with the collector. And the company was also found liable to restore the damages which it had caused to the environment, under the ‘polluter pays’ principle in Jurisprudence of the Indian Environment Law, which was introduced in the case of the Indian Council for Enviro-legal Action vs. Union of India[i], where the court held that if the activity which was carried on was hazardous or dangerous, the person who carried such activity is liable. However, NGT in its order observed that the situation is attracted more by the principle of strict liability and not by absolute liability. Which in turn made a loophole for the company, to escape the liability and to show that there was no negligence on their part.

Here, let me try to explain the two concepts further and how it opened a window for the company to escape the liability and to give further explanation that there was no negligence on their part.

Strict liability

The principle of strict liability evolved in the case of Rylands Vs. Fletcher[ii], where it was held that any person who has used the land in a non-natural manner and the escape of any harmful substance from such land causes harm to the surroundings, is directly liable for the damages caused and there is no way in which such person can escape the liability. The key point is about the compensation which should be provided and it was decided that the compensation provided will be based on the nature of the damages caused.

So, to understand this rule better, we need to look at the essentials that are required to prove strict liability:

• Dangerous substance: To impose the principle of strict liability, a dangerous substance should be held by the defendant, which when escapes can cause harm to others. 
• Escape of the dangerous substance: The harmful material should escape from the premises of the defendant.
• Non-natural use of the substance:It is important to prove that there was no natural use of the land.

These three conditions must be satisfied simultaneously to constitute a strict liability.

There is indeed a point that the case of Vishakhapatnam Gas Leak tragedy fulfils all the requirements which are needed to put a person under strict liability. But here, the essential factor is not about who is responsible but what damage such tragedy has caused to the environment and public in general.

But the above essentials came with some exceptions, which are as follows:

• Act of God: Acts that are caused due to the act of nature and that cannot be controlled by men come under this category.
• A wrongful act was done by a third party: if the act is done by a third party or caused due to an inevitable accident then the defendant cannot be held liable.
• Plaintiff’s fault: here on, if the plaintiff himself is at fault, then the defendant cannot be held liable.
• Work was done for the common benefit of both parties.
• Acts of statutory authority: No one will be held liable for the acts which are authorized by the legislature.

Therefore, the rule of strict liability was good but with time has become obsolete, as the industries with their power or with the loophole in the law tried to avoid their liability. So, a new concept of absolute liability was introduced, to cover the loophole and to compensate the troubled.

Absolute liability

Absolute liability was introduced in India in the case of Oleum gas leak i.e. MC Mehta v. Union of India[iii], in this case, it was clearly stated by the court that any enterprise, which is engaged in hazardous activities and has a threat to the health and safety of the people who live in the surrounding areas, owes an Absolute duty towards the community and it should ensure that no harm is done to anyone, the best part of this principle is that it offers no exception to the industry which is involved in any kind of hazardous practices.

Essentials of Absolute Liability:

1. Under absolute liability, if any enterprise is involved in any kind of dangerous activities from which such enterprise is gaining any kind of profit and such activity is indirectly or directly is able to cause damage, then the officials are completely liable to pay compensation to the party which has suffered damages.
2. The industry can not in any condition plead that it was not negligent and has taken every measure for the safety of the public in general.
3. In Absolute liability, the industry will not be allowed any kind of exception neither they can take any kind of defence like ‘Act of God’ or ‘Act of Stranger’.
4. The industry will be held liable for all possible consequences resulting from any kind of activity even if such damages are occurred in the industry to some workers. This not only safeguards the interests of the workers but also creates a safe environment in the enterprise.
5. Here, the compensation paid is exemplary in nature. And the amount which is decided should be more than the damage caused as such incidents are not normal in nature and can cause many deaths and destruction to properties.

The best part of this rule is that absolute liability can be upheld by the courts in case of a single death, without having any mass destruction to the property or to the environment.

Difference between the two concepts.

The principle of strict liability is very different from absolute liability, not only in the exceptions which they hold but also when the damages are to be paid to the aggrieved party as under strict liability the compensation is payable according to nature of damages, whereas in absolute liability damages which are to be paid depends on the financial capability of the enterprise. Moreover, absolute liability unlike strict liability does not mandate the element of escape, which means that even if the hazardous substance does not leak but causes harm to the workers inside, the enterprise could be held liable.

Conclusion

Strict liability and absolute liability are quite similar as it imposes the liability on the person even when he is not at fault i.e. ‘no-fault liability’. But strict liability leaves a loophole by giving exceptions to the defendant whereas, the principle of absolute liability has no room for such exceptions. Hence, in this case, where a harmful gas leaked in the air with the clear negligence of the company, where thousands of lives were put in danger and the bad impact of the gas leaked will be seen even in the next generation. The committee made a decision to the best of its ability and timely imposed the penalty on LG Polymers, but it left the case in controversy due to the impugned principle and opened a way for the company to give an excuse for the damage. In my view, the committee should have used the word absolute liability instead of using strict liability in the case of Vishakhapatnam Gas Leak tragedy, which would have left no way for the company to escape from the liability.

[i] Indian council for enviro-legal action vs. union of India 1996 (3) SCC 212

[ii] Rylands Vs. Fletcher L.R. 3 H.L.330 (1868)

[iii] . MC Mehta v. Union of India AIR 1987 sc108

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