Strict Liability And Absolute Liability: Vishakapatnam Gas Leak Case

The birth of the modern industrial revolution has introduced a revolutionary aspect of legal suits and laws related to liabilities. With major industrial accidents occurring around the world like the Halifax accident, The Chernobyl disaster, the Bhopal gas tragedy and the latest case of the Vishakhapatnam gas leak, a struggle for justice was initiated against the rich companies and businessman culpable for the loss of life and property. The change in the rule of no-fault liability from strict to absolute paved the way for the transformation of laws according to the advancement in the technology and higher claims and liabilities against the accused rich operators of the industry. This article gives an insight into the rule of strict and absolute liability, including its origin and applicability to cases with special reference to the Vishakhapatnam gas leak case.

Strict Liability

There are some activities, which are inherently dangerous, hazardous and are an unremitting danger to people and their properties and there are 3 ways to deal with it:

  1. The state can prohibit them permanently.
  2. The activities can be allowed to carry on, but with restricted provisions of the statute.
  3. The activities can be handled by the rule of Strict liability.

Under the rule of strict liability, if a person brings an inherently dangerous or harmful thing in his land and by some reason if it escapes, that person will be liable to compensate for the damage caused irrespective of any carelessness on his part. Even if he took precautions, he will be liable to compensate for the harm directly occurring through it, which is where the concept of strict liability is different from mere negligence.

The rule of strict liability originated in the case of Ryland’s vs Fletcher[1]. In this case, the defendants had a mill in Lancashire.For better water supply, they constructed a reservoir. When the water was filled in the reservoir, it flowed down the plaintiff’s neighbouring coal mine causing damage. Also, the engineers who were independent contractors hired by the plaintiff negligently did not fully seal the mine shafts through which the water flooded the plaintiff’s coal mine. The case was dismissed by the court of Exchequer on the grounds that the defendants were not negligent and as the engineers were independent contractors, they would not be held vicariously liable[2].

However, in its appeal, the House of Lords held the defendants liable. Justice Blackburn, J in his judgement laid down the rule of strict liability. He stated – “The rule of law is that the person who, for his purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it on at his peril; and if he does not do so is prima facie answerable for all the damage which in natural consequence of its escape.”[3]

Another rule in strict liability is the non- natural use of land. This was introduced in the case of Rickards vs Lothian[4] where Lord Cairns and Moulton of the privy council agreed that “ It is not every use to which land is put that brings into this principle, it must be of some special use bringing with it the increased danger to others”.

The non- natural use of land also should result in the “escape” of the thing that causes damage. This notion came in the case of Reading vs Lyons& Co.[5]and later on in Transco plc vs Stockport MBC[6]. In the case of Transco plc, a water pipe which provided water supply to the flats owned by the defendant fractured and water flowed in large quantities leading to the collapse of an embankment owned by the plaintiff. The House of lords negated plaintiffs claim to cite that water supply from pipes is not a dangerous or hazardous activity.

However, with much discussion amongst the authorities, it was held that if there is a non -natural use of land and the thing escapes causing foreseeable damage, the defendant then is held liable to pay the damages.

Thus the key elements of Strict liability are:

  1. Hazardous or dangerous thing brought in the land which would create a substantial amount of damage to people and their property e.g. Poisonous plants, wild animals etc.
  2. Non – natural use of the land
  3. Escape of the dangerous thing

However, there are a few exceptions or defences that a defendant can use-

  1. Act of God – Act of god or Vis Major consists of occurrences which are extraordinary, sudden, irresistible forces of nature which are out of the hands of people and could not be foreseen like an earthquake, landslides, heavy rainfalls etc. A mere act of god cannot cover the negligence part on the defendant, only when the defendant did everything on his part to take precautions. A famous case related to this exception is of Nicholas vs Karsland[7], in which a series of artificial lakes were constructed on his land but due to an unusual fall of rain with no negligence on his part,  the reservoir bust with water flowing out in huge quantities and carried or broke away four bridges. But the court held him not guilty as the reservoir burst due to heavy rainfalls which with no prior knowledge was an act of god.
  2. Wrongful act or interference by a third party- When an escape of a dangerous thing on defendant’s land is caused by the act of a third party, the defendant will not be held liable for its escape and damages caused in consequence of the escape. However, he can be held liable in negligence if he failed in foreseeing or didn’t take necessary precautions to keep the thing intact in his premises.
  3. Consent or plaintiff’s default- When both the defendant and plaintiff are doing an act together with each other consent and somehow plaintiff suffers an injury because of the escape from defendant’s land, then the defendant would not be held liable. Ex: Sharing water in the adjoining lands and if by the fault of the defendant, the plaintiffs land gets flooded; the defendant cannot be liable as he had plaintiff’s full consent.
  4. An act is done under the statutory authority–  If any action has been authorised by the state or legislature, the action will not be held liable unless and until there is negligence on state’s workers part[8].

Absolute Liability

Strict liability provides compensation of damages for loss occurred due to the escape of a dangerous thing. But, with exceptions or defences to it, the defendant can’t be held liable even if the damage was substantial in terms of monetary and loss of life. A more stringent rule of strict liability was laid down in India by the Supreme Court in the case of. MC Mehta vs Union of India[9], in this case, there was a leakage of oleum gas from Sriram foods and fertilizers in Delhi in December 1985. Due to this, a PIL was filed against Delhi cloth mill Ltd. The gas leak was protected due to one of the exceptions of strict liability.

The Supreme Court took a revolutionary step by ruling in favour of the petitioner and stated that the rule of strict liability needs to be evolved as it doesn’t meet the needs of the subject matter of the new cases. SC laid down rules regarding absolute liability that “if any person is engaged in a hazardous or dangerous activity and if any harm results to anyone on account of the operation of such activity, for example- on the release of toxic gas, the enterprise would be strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate under strict liability”.

Distinction between the two concepts

  1. The rule of strict liability requires non-natural use of land by the defendant but in absolute liability laid down in the MC Mehta case, it is only required that the defendant is engaged in a hazardous or dangerous activity.
  2. In strict liability, there are some exceptions available to the defendant to avoid paying damages. But in absolute liability, there are no exceptions. Even if the defendant took all the precautions or the escape was caused by an act of god or by a third party, still, the defendant is liable to pay damages.
  3. Damages awarded in strict liability are mostly ordinary or compensatory but in absolute liability, the damages awarded could also be exemplary where the Supreme Court laid down the rule that the larger is the enterprise, the greater must be the amount to be paid.
  4. The rule in strict liability does not cover the damage of the people ‘inside the premises’[10] as when there is no escape, the strict liability rule will not apply. But in Absolute liability, there is no such distinction.

Bhopal Gas Tragedy

The Bhopal gas tragedy is considered to be the worst industrial disaster in India and the world. In this case, Union Carbide limited was a multinational USA company operating a factory in Bhopal mainly producing a pesticide called Sevin by using Methyl Isocyanate. Before the leak incident, UCL factory in Bhopal had 3 liquid MIC storage tanks E610, E611, and E619 and E610 couldn’t control the nitrogen gas pressure because of which liquid MIC could not be pumped out of it. Also, E610 had 42 tons of MIC which were in violation of their rules by keeping MIC in a tank above 30 tons. Thus it became mandatory for UCIL to halt methyl isocyanate production in Bhopal which led to shutting the plant for some time.

 On December 2 1984, most of the plant’s methyl isocyanate related safety systems were malfunctioning and the water had entered the malfunctioning tank, which resulted in runaway chemical reaction. The pressure in the tank increased by night and the chemical reaction reached to a critical condition by mid-night and consequently, about 30 tonnes of MIC escaped from the tank into the atmosphere.

Due to its escape, the gas leak killed more than 15,000 people and affected over 600,000 workers. Following the incident, the stillbirth rate and the neonatal mortality rate increased by up to 300% and 200% respectively. Within a couple of days, trees in the nearby area became barren. Bloated animal carcasses had to be disposed of. People ran on the streets, vomiting and dying.[11]

The central government then passed the Bhopal gas leak act in 1985 which allowed them to act as legal representatives and sue on behalf of the victims. A case was also filed in the U.S Court claiming 3.3 billion dollars for the disaster accusing Union Carbide Corporation. However, in 1986 all of these cases were transferred to Indian courts on the grounds that the Indian courts are more convenient for the trial proceedings to run smoothly. As a result, the government filed the case in the District Court of Bhopal. They ordered the Union Carbide Corporation to pay Rs 350 crores compensation. UCIL later on filed an appeal to the High Court and the compensation amount was reduced to 250 crores. Then  the government and the UCIL favoured filing special leave petitions appeals against the High Court’s judgement[12].

Then an out of court settlement was signed between the government and UCIL to fix compensation at 470 million dollars which will be full and final of all claims and liabilities. This settlement was challenged in the Supreme Court and protest emerged. But the Supreme Court upheld the settlement in Union Carbide corporation vs Union of India[13] but the condition of quashing criminal proceedings was not acceptable and thus were allowed. The criminal proceeding was initiated before the magistrate of Bhopal and the judgement came in 2010 ruling the accused guilty.

However, the judgement was never enforced because only a few appeared in the Court at the time of proceedings and judgments. One of them was Mr Warren Anderson, the chairman of the UCCL at the time of the disaster. He is still on the run and all requests for his extradition remain unsuccessful.

The 1991 Act

The Public Liability Insurance Act, 1991 is an important legislation to compensate people from accidents arising out of hazardous industries. This act provides insurance to the public to give them immediate relief for the injuries suffered. Section 3 provides `No-Fault Liability’. Also, it is the duty of an owner of a hazardous/ dangerous material producing factory or industry to insure himself of any liability for the damage caused in the instance of its ‘escape’[14].

Section 2(d) defines hazardous substance which is any substance which is mentioned under the hazardous category in the Environment (Protection) Act,1986. The extent of liability has been fixed but it does not force any victim to claim more compensation in the court.

Vishakhapatnam Gas Leak Case

After some major industrial accidents came the gas leak accident in Vishakhapatnam. In this case, there was a plant established near Ventapuram village and later on named L.G Polymers, owned by a South Korean based company formerly named L.G Chem. It manufactures Polystyrene and another engineering- plastic compounds.  Under the Environment Protection Act 1986, LG Chem should get environmental clearance for their plant L.G polymers should they expand their plant which they did 5 times between 2006 and 2018 without any clearance. L.G Polymers never asked and got federal environment clearance to operate the plant but they did get clearance from Andhra Pradesh state environment board to do so.

On 7th May 2020, the plant’s operations began after the lockdown period due to the Covid-19 Pandemic. Around 2000 metric tons of Styrene had been kept in the tanks unattended which then vaporized because of exceeding temperature levels above 22`C. Due to this the gas leaked from the plant and spread into the villages coming under the radius of 5km which consisted of around 5 villages.

Many people were rushed to hospitals suffering from breathing difficulties and burning sensation in the eye and many other people were lying unconscious because of the exposure from the gas. An early estimate provided the info that at least 11 people had died, and more than 20 people were in critical condition. Now, the death toll had risen to thirteen, 800 people were admitted in the hospital and around 1200 people were relocated from the affected villages[15].

The Andhra Pradesh Government allowed a compensation package of 1 crore rupees to the family of the deceased and other financial assistance packages to people undergoing treatment. An FIR was filed against L.G. Polymers by the police under sections 278,284,285,304,337 and 338 of the IPC. Later on, Andhra Pradesh took suo moto cognizance and directed LG polymers to mitigate the level of loss suffered.

Consequently, NGT took suo moto cognizance of the matter and scheduled a hearing before NGT bench headed by Adarsh Kumar Goel. NGT then directed LG polymers to pay Rs 50 crores and deposit it with the District Magistrate of Vishakhapatnam. Also, notices were issued to AP Pollution Control Board, Central Pollution Control Board and Ministry of Environment, Forest and Climate Change. A five-member committee headed by Justice AP, a high court judge, was formed by the NGT[16].

Strictly or Absolutely Liable

In strict liability, the defendant will be liable to compensate for the losses suffered by the people but carries certain exceptions with it. In absolute liability, there is no room for exceptions and also not giving the defendant the benefit of a doubt.

In the Vishakhapatnam/ Vizag case, Supreme Court, especially in MC Mehta case, laid down the rule for absolute liability for cases like these occurring in the future with no complete environmental clearance, dealing with hazardous substance and lack of compliance on LG Polymers part, NGT held them strictly liable. Section 17 of the NGT Act, 2010 talks about the liability to compensate in terms of industrial accidents and section 17(3) it is stated that in dealing with such a case, the principle of  ‘No-fault’ liability will be applied[17].

NGT has held them to be strictly liable for gross negligence on their part. But absolute liability would have been a better alternative as the ruling of NGT to deposit 50 crores is nothing compared to the damage they have done. Strict liability exceptions can be manipulated and presented in a way if used by good lawyers which could lead to an unjustified stance on the accused actions. With absolute liability, LG Polymers could have been liable to pay exemplary damages to the families affected directly which would have been much better.

The ruling of NGT looks like another settlement just like the government did in the Bhopal gas tragedy. With absolute liability, the criminal proceeding should have been considered against LG Polymers with central government taking the claim to sue just like they did in the Bhopal gas tragedy. The rule of absolute liability was made for these instances of industrial mishappenings so that fair and equal justice could be provided with extra-legal consequences for the party liable. Hopefully, the courts will consider should the case being filed, to make LG Polymers absolutely liable.

Conclusion

The Vishakhapatnam gas leak case was another example of our loose environmental laws and lack of strictness in its implementation. With already having witnessed the horrors of the Bhopal gas tragedy, the people didn’t want to face another adversity due to gross negligence by the industrial companies. The lack of coordination in the implementation of rules between the Central and State Government was exposed by giving clearances to LG Polymers without even considering the stance of the ministry and other government agencies. In the name of selfish gains and monetary advantage, the Andhra Pradesh Government failed to foresee its outcome.

Also, the case highlighted the fact of the non -applicability of the rule of absolute liability because the courts are not realising the condition of the people who suffer the most. With absolute liability, exemplary damages can be taken and no arsenal of defences can be provided to the companies in making them absolutely liable. Whether our legal system will realise this and take further action on the accused, time will tell.


[1] (1868) LR 3 HL 330

[2] Ratanlal & Dhirajlal, Law of Torts,28th edition (2019)

[3] (1868) LR 1 Ex 265,279

[4] (1913) AC 263

[5] (1947) AC 156 (HL)

[6] (2003) 3 WLR 1467 (HL)

[7] (1875) LR 10 EX 255

[8] RK Bangia, Law of Torts, (2016)

[9] (1987) 1 SCC 395

[10] Read vs Lyons (1947) AC 156 (HL)

[11] https://www.business-standard.com/about/what-is-bhopal-gas-tragedy

[12] http://www.legalservicesindia.com/article/373/Legal-Aspects-of-the-Bhopal-Gas-Tragedy.html

[13] 1989, SCC (2) 540

[14] The Public Insurance Act, 1991

[15] https://india.mongabay.com/2020/05/years-of-neglect-led-to-vizag-gas-tragedy/

[16] https://www.livelaw.in/environment/breaking-vigaz-gas-leak-ngt-directs-lg-polymers-to-deposit-rs-50-crores-constitutes-5-member-committee-for-proberead

[17] National Green Tribunal Act, 2010

Kshitij Pandey from Dr. Ram Manohar Lohiya National Law University, Lucknow

EDITED BY: ROHAN ADITYA

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