Vizag Gas Leak and The rule of Absolute Liability

Introduction:

When the whole country was asleep after battling another day with the fatal COVID-19 pandemic, a village and almost a dozen of its people fell prey to a deadly gas leak. Several succumbed to death and hundreds were admitted to the hospital. No one could have wondered, that a factory existing there for decades could do such harm. In the wee hours of March 7, a toxic gas and benzoic compound "Styrene" leaked in the Venkatapuram Village from LG polymer factory situated near the village. The village is in Vishakhapatnam (Vizag) located in Andhra Pradesh. Environment Protection Agency(EPA), a US-based agency has explained the long term and short term effects of exposure to the Styrene gas. The short term exposure causes respiratory difficulties, irritation of eyes, nasal mucous membrane and gastrointestinal issues. Whereas, a long term exposure can affect the liver, kidney, Central nervous system CNS and may be carcinogenic in some cases leading to cancer.

What caused the leak?

As per the revelations made by LG Polymers, stagnation and changes in temperature resulted in the gas to vaporise. On the other hand, Forensic experts  from the Andhra Forensic Science Laboratory have revealed that the mishap is a consequence of human error and delinquency. There was certainly gross negligence on the part of the company LG Polymer as it omitted to add auto polymerization inhibitor in the storage tank containing styrene and also neglected to maintain the temperature below 20 degrees Celsius. Experts further said that styrene is a liquid hydrocarbon which needs to be cooled under certain specific temperature failing to which it can percolate and evaporate in the atmosphere as vapour. Tertiary Butyl Catechol is added in order to prevent leakage and evaporation. National Green Tribunal (NGT) has imposed an interim penalty of Rs 50 crore on LG Polymers due to the damage caused to Public health, Environment and Life.

As per the Rule 2(e) of Schedule 1 of the Manufacture, Storage and Import of hazardous chemical Rules 1989,  "Styrene gas" is defined as a hazardous chemical, which also requires on and off-site plans ensuring destruction and damage. NGT has also specified that the leakage of hazardous gas attracts the principle of Strict liability. Now, the question arising is, “what do we mean by strict liability and how is it emanated?”.

What is Absolute Liability?

According to the Doctrine of Absolute Liability, “anyone who is engaged in storing or processing inherently dangerous or hazardous substance, should do so at his own peril. This is because he’s aware that the substance so concerned, can cause damage if it escapes. The person will be held absolutely liable for all the foreseeable consequences of the escape without any exception or excuse. It is a type of no-fault liability, as one is deemed to be liable for the act which they never intended to do. There are certain important elements of the doctrine:

· Dangerous Substance: The defendant is only held liable when the substance he brings to his premise is hazardous in nature and is capable of doing some mischief or damage on its escape.

· Escape: This is the second vital element which says that the defendant will only be held liable if the dangerous substance escapes and is no longer in the control and supervision of the defendant.

· While evaluating the case it should be assessed that there should be a special use which makes others exposed to the hazard. For example, the planting of a tree on the land is a natural use but at the same time if the tree thus planted is a poisonous one, and can be a threat to people, such can act will attract the application of this doctrine.

Evolution of this concept

Tracing the inception and evolution of Absolute Liability Doctrine, one reaches to the Doctrine of Strict Liability from which the former derives its existence. The Doctrine of strict liability was established in the well-known case of Rylands V. Fletcher in the year 1868. According to the facts, Fletcher, the defendant in the case had a mill near Ainsworth in Lancashire and wanted to improve its water supply. Further, he constructed a reservoir to power the mill. He employed reputed efficient engineers. When the reservoir was filled, the water flowed down to the plaintiff's coal mine through disused mine shaft as it was not sealed properly. The water flooded the plaintiff's land and mine. Ryland filed a suit against Fletcher.

The court hereby decided that Fletcher, the defendant was liable as he built the reservoir and kept such a thing which could do mischief if it escaped. Owing to the non-natural use of land he was held strictly liable according to the facts.

The doctrine of Strict Liability states that if anyone keeps or brings any hazardous or inherently dangerous substance/material, being on the premise should bring it at his own peril. If the substance is likely to do mischief or can cause destruction on it's escape, the owner of the premise who brought the thing is liable to all the consequences if that dangerous thing escapes. The doctrine also has the same elements as of absolute liability but it also has  exceptions or defences given to the defendant which he can claim to exempt himself from the liability. There are different exceptions like Act of God(Vis Major), Plaintiff's own fault, Act of third party and consent of the Plaintiff.

Although the principle of Absolute Liability was prevalent since 19th century but it arrived late in India. It was only after the historic judgement of the case of MC Mehta V. UOI that Indian judiciary felt the need to apply it in the Indian subcontinent. Just like the gas leak of vizag, oleum gas leaked in certain areas of national capital Delhi, due to which many people suffered. The Supreme Court decided that the defendant company would be liable for the damage caused without considering exceptions. The rule which was laid down in the MC Mehta V. Oleum was also followed while deciding The Bhopal Gas tragedy case.

Strict liability was a very old principle established in the 18th century. Our world is dynamic and so were the issues. As a result, there was an urgent need of reconstruction of the old principle according to the need of hour. This two-century old principle neglected the industrial growth and high rate of scientific advancement as well as it’s aftermath. Earlier, industries could get away with damage caused to the environment, public health and life by using any of the exceptions or with money and wealth. But in today’s scenario, they are held responsible for every act. We all  know that India is on it’s way of developing its economy and hence it was crucial to have such a principle to protect the people of our country. As the principle of strict liability was old, it was declared to be redundant in India by our honourable Supreme Court in 1987.

Absolute Liability with respect to Vizag Gas Leak

In the present scenario concerning the vizag gas leak mishap it is necessary for the government to take stringent action against the LG Polymers under Absolute Liability principle. The gas which leaked is a hydrocarbon named Styrene; which according to the Environment Protection Agency EPA, is a toxic gas that can inflict serious health issues to people who inhale it. This concept was only established to punish and penalise those who put environment and life at stake. As decided previously in the cases of Bhopal Gas tragedy and MC Mehta V. Oleum gas leak, defendants should be held absolutely liable without giving any exception.

Critical Analysis

The use of the term Strict liability by National Green Tribunal in the Vizag gas leak issue attracts attention. As specified earlier, it has already been declared redundant by the Supreme Court of India in the year 1987. Applying the principle of Strict Liability to the industries engaged in hazardous materials, if the material escapes either by accident or act of God (natural calamity unforeseeable by human) the corporation will not be held accountable or liable and hence gets exempted from paying the compensation for damage caused. Committee of forensic experts formed to probe the Vizag gas leak, revealed from their reports that it is not a mere accident or Act of God but gross human negligence. The prima facie evidence shows that the temperature was not maintained i.e. it was not below 20°celcius by the company and it also omitted to add auto polymerisation TBC tertiary butyl catechol in to the tank containing styrene.  National Green Tribunal Act of 2010 has defined Absolute Liability principle. Section 17 of the Act says that any corporation dealing in inherently hazardous substance has to compulsorily pay damages( compensation) irrespective of the fact that the damage was caused by negligence, accident or Act of God.

The section makes it necessary for NGT to apply Absolute Liability principle even if it is caused by accident. NGT went wrong in assessing and applying Strict or Absolute liability principle but has indeed slapped an interim penalty of Rs. 50 crore on LG Polymers.

Absolute Liability has its own limitations. The principle is more stringent and does not consider any plea regarding accidents or anything beyond human control and foresight. It has limited applicability as it only aims to punish industries engaged in hazardous substances and ignores the negligence of professionals like Doctors, Lawyers, Engineers etc. The principle also hinders the incentives of people who dream of establishing new businesses as they are in constant fear of facing legal consequences without even their fault.

The concept of non-natural use of land varies from place to place as the courts in India recognized storing water in large quantity as an exception to the principle. The reason is that, storing water is necessary according to the agricultural conditions peculiar to the country. We should notice that there is a need for flexibility in the rule so that an innocent does not get punished.

Conclusion

The principle of Absolute Liability is Plaintiff oriented which aims to apply Criminal or Tort laws on the corporate bodies. It is done to ensure that innocent victims do not suffer on the account of one flourishing his business. In fact, no one should suffer from the mistake or negligence of others. If the destruction is a result of an inherently hazardous substance, it is the full responsibility of the Defendant to stave off such a mishap.

We can see that the Judiciary has a very significant role to play. It has the sole responsibility of altering laws to adjust them to the contemporary needs of society. The progressive approach taken in the case of MC Mehta made it difficult for the companies to make excuses or defences and get exempted from assuming liability. With the principle of Absolute Liability, it became easy to secure Right to life of the people enshrined within the Constitution of India. The refined approach is praiseworthy and commendable as it didn't wait  for the courts in England to change the laws but instead brought substantial changes in the Indian legal system itself. Laws from time to time are ought to be renovated and should be moulded to fit the needs of society.

The rule of Absolute and Strict Liability should be seen as an anomaly; commonly a person is liable and punished for his own acts or omission of legal duty but here one gets punished even without his own fault or mistake, thus it is also known as "No-fault liability". We can hence conclude that from being a no-fault liability with exceptions, strict liability had gone a long way to evolve itself into Absolute liability in order to suit the present issues. Vizag Gas leak has done tremendous loss to human life and environment referring to which the government should take stringent action to curb such accidents in future.