VIZAG GAS LEAK: A CASE OF ABSOLUTE LIABILITY? - By Amisha Upadhyay

An uncanny resemblances of Bhopal Gas Tragedy 1984, could be seen when news broke of gas spill in Visakhapatnam in Andhra Pradesh earlier this May. While the spillage of styrene gas from the LG Polymers plant nearby Vizag has hitherto demonstrated less risky than the break at the Union Carbide manufacturing plant in Bhopal, 11 individuals have still lost their lives. Hundreds have been migrated elsewhere. The National Green Tribunal took cognizance of the incident penalising a fine of Rs. 50 Crores . The High Court of Andhra Pradesh under Article 226 of the Constitution of India the writ of Mandamus in the light of the hazardous gas leak, the High Court took suo moto action against the same notifying that the ‘Styrene’ gas leaked is hazardous under the Environmental Protection Act and as per the Chemical Accident (Emergency Planning, Preparedness, and Response) Rules of 1996, in Part II list of hazardous and toxic substance. Following the investigation, the NGT order said: “Leakage of hazardous gas at such a scale adversely affecting public health and environment, clearly attracts the principle of ‘Strict Liability’ against the enterprise engaged in hazardous or inherently dangerous industry.”


PRINCIPLE OF STRICT AND ABSOLUTE LIABILIY


Ryland v Fletcher became the landmark case which framed the principle of strict liability stating:

A person will be held liable who indulges in any ‘non-natural’ use of land, possesses a hazardous substance in the premises would be ‘strictly liable’ if such substance escape the premises and cause damage to others. Further, person/organisation would not be held liable and need not pay compensation if a risky substance gets away from its premises by an 'Act of God' (Force Majeure) third party’s fault, consent of the plaintiff, plaintiff’s own fault. Thereby, the principle holds accountability in case ‘negligence.’

Modifying the principle of ‘Strict Liability’ the Supreme Court in M.C. Mehta v Union of India, maximised the limit of rule of Ryland v Fletcher. Thereby, increasing the scope of the principle perhaps striking-off the exemptions and defences laid down previously making it mandatory to pay compensation whether such incident took place due to negligence or not. Absolute liability, does not provide defences for enterprises and is in adherence to Article 21 (Right to Life). Article 21 read as ‘no person shall be deprived of his life or personal liberty except according to procedure established by law’. This includes both citizen and non-citizen. The court needed enterprises to be made completely liable for future undeserved enduring of citizen and held that a hazardous organisation/company has a flat out non-delegable obligation to the state. To conclude the doctrine the Supreme Court in MC Mehta Case stated:

“If the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such activity as an appropriate item of its overheads. The enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards.”


ABSOLUTE LIABILITY NEEDED


The principle thereafter was applied by the Supreme Court on various occasion such as Indian Council for Enviro-legal Action vs. Union of India, wherein due to an industry present in the vincity it caused enormous level of air pollution to the residents of the town thus, violating Article 21 as it disregarded their entitlement to life as they did not have a healthy surrounding The Supreme Court upheld the Doctrine of Absolute Liability here expressing that the contamination caused must be re-established. The follow-up procedure must be paid by the industry regardless of whether their properties should be appended for this reason. The industry were made totally obligated for paying compensation.

The specific subtleties of the Vizag Gas Leak are not yet known, the argument in favour of LG Polymers would be to contend that the break was out of their control and reasonable care was taken as a result of troubles emerging out of the coronavirus lockdown. Under the idea of ‘Absolute Liability’, it should be recollected that there exists no defence thereby LG Polymers' duty lies to pay compensation for such accident. Additionally, it is essential to take note that the number of loss of life will not be applicable as an argument for defence according to resulting decisions of the Supreme Court on the issue. As in Klaus Mittelbachert vs. East India Hotels Ltd., the principle of Absolute Liability was upheld by the Court even in case of a single death without mass destruction. According to data, 11 people have lost their lives, another 25 are in critical, approximately 200 people have been hospitalised, and 1,000 have fallen ill. Thereby causing a grave chaos in the region.

The Andhra Pradesh government had declared that Rs 1 Crore aid be paid to the families of the deceased. Critically ill or patient on ventilators will get Rs 10 lakh each, other people who are hospitalized will get Rs 1 lakh each. The state government will also give compensation to the individuals who needed to visit the emergency clinic, the families which needed evaluation, and the individuals who lost their cattle to the incident. These aids and compensation be that as it may, are ex gratia payment by the state government, and totally separate from the company's liability.

LG Polymers, similar to Union Carbide, is also owned by foreign enterprise – for this situation South Korea-based LG Chem, making it similar like the Bhopal Gas leak Tragedy. While the casualties in the Vizag Gas Leak is fewer than those in Bhopal in 1984, and the styrene gas is not reported to cause the long term harm, the standard of Absolute Liability should imply that a significant measure of compensation should be paid to the people in suffering.

Thereby, the use of “Strict Liability” by NGT in the order gives the company a loophole and an advantage which otherwise would not have prevailed.



105 views