top of page

Country’s unaddressed vulnerability to chemical disasters: Who is liable?

Mansi Ahuja


Another toxic gas (Benzimidazole) leak Vizag witnessed at pharmaceutical firm Sainor Life Sciences on 29 June midnight in tandem to styrene gas leakage at South Korean firm LG Polymers which killed at least a dozen and affecting thousands. This is the second gas leakage accident at Sainor Life Sciences’ factory at Parawada industrial zone on Visakhapatnam outskirts in the last three years and third gas leakage accident in Andhra Pradesh post lockdown.


The incident at LG polymers Vizag made everyone hearken back to a resemblant gas tragedy of Bhopal in 1984 that had taken a toll on 4000 lives and incapacitated hundred thousands. The case dumbfounded the legislative machinery of the country which didn’t have any tenacious law to decide the compensation. But the incidents differ in their intensity and, unlike Union Carbide Corporation (Bhopal Gas Leak Tragedy), LG Polymers did not know in advance that toxic gas could leak. However, the nature of the substance and the companies’ activities are similar, and this suggests that the principle of absolute liability could be applied in the current case as well.


Now the most interesting and contested fact that came in the public eye was when National Green Tribunal (NGT) took suo motu cognizance of the matter and 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.The use of the term strict liability has been questioned by the lawyers because it was made redundant in India by the Supreme Court in 1987.


The Principle of Strict Liability and Absolute Liability


Many times it so happens that the person is made liable for the act, which he may not have done, or moreover he has also made all possible efforts to avoid any harm caused by his act, but would still be held liable. That is there are rules under strict liability and absolute liability where the person is held liable even at places where he is at no fault. The law recognizes such rules and these are based upon the principles of ‘No Fault Liability’.


These rules have its derivatives from the case laws. The rule of Strict Liability was laid down in the case of Rylands vs. Fletcher and therefore this rule is also termed as ‘Rule in Rylands vs. Fletcher’ but due to some exceptions as provided under this rule, the rule of Absolute liability was laid down. It was laid down in the case of M.C. Mehta vs. Union of India where the Supreme Court held that there can be no defence available for the act done; the defendant would be liable for the act.


Strict Liability


The principle of strict liability states that any person who keeps hazardous substances on his premises will be held responsible if such substances escape the premises and causes any damage.


Essentials for a tort to be held under the Doctrine of Strict Liability are :


a) Non natural use of land must have taken place.

b) Escape of a dangerous thing from that land on which it was kept must have taken place.

c) The dangerous thing must have caused mischief.


This principle was first applied in the House of Lords in respect to the case ‘Rylands vs. Fletcher, (1868)’.


Rylands vs. Fletcher, 1868: The defendant (Fletcher) an owner of a mill in Answorth with an aim to improve water supply for his mill employed independent and efficient engineers for the construction of a reservoir. During their excavation of the ground underneath, they came across some shafts and passages but chose not to block them. Post construction of the reservoir when they filled it with water, all the water flowed through the unblocked old shafts and passages to the plaintiff’s (Rylands) coal mines on the adjoining land and inundated them completely. The engineers kept the defendant in the dark about the occurrence of these incidents. On a suit filed before the court by the plaintiff against the defendant, the court though ruled out negligence on the defendant’s part but held him liable under the rule of Strict Liability. Any amount of carefulness on his part is not going to save him where his liability falls under the scope of ‘No Fault Liability’.


Exceptions to Strict Liability


The strict liability rule does not apply in cases involving the following exceptions:


1) Act of God


An act of God is a sudden, direct and irresistible act of nature that nobody can reasonably prepare for. For example, tsunamis, cyclones, earthquakes, extraordinary rainfall, etc. are acts of God. Any damage that occurs due to these acts does not attract strict liability.


2) Wrongful act of a third party


Sometimes, the involvement of third parties may be the cause of damages. For example, renovation work in one flat may cause some nuisance to another flat. Here, the tenant affected by the nuisance cannot sue his landlord. He can only sue the person renovating the other flat.


3) Plaintiff’s own fault


In several instances, the plaintiff may himself be at fault for the damage he suffers. In such cases, he cannot shift liability on some other person regardless of how much he suffers.


4) Statutory Authority


An act done under the authority of the statute is a very strong defence to an action for tort. However, the defence cannot be pleaded if the if there is any kind of negligence on the part of the defendant who is under statutory authority.


Absolute Liability


Absolute liability is a concept of law evolved in India, after the case of M.C. Mehta vs. Union of India 1987, popularly known by the name of Oleum Gas Leak case. This principle is a kind of strict liability with no exception. That is under this principle the defendant won’t be allowed to plead any defence as there was under Rylands vs. Fletcher case.


Under this rule, if any person is engaged in any hazardous activity and if any harm occurs while carrying out such activity then the person will be held liable for the harm or the damage so occurred under absolute liability. Under this, he won’t be allowed to take any exception as was under the rule of Strict Liability.


Underlying principle of Doctrine of Absolute Liability: This doctrine was laid down on the basis of the idea that the enterprise who is earning profit from the general public should also be made liable if any harm is caused to them by their fault.


The rule laid down in the case of MC Mehta v UOI was also followed by the Supreme Court while deciding the case of Bhopal Gas Tragedy case. After such incidents the India legislature passed The Public Liability Insurance Act, 1991 was passed for the speedy relief to the victims.


The Public Liability Insurance Act, 1991


Public Liability Insurance Act,1991 is to provide the compensation for damages to victims of an accident of handling any hazardous substance or It is also calls, to save the owner of production/storage of hazardous substance from hefty penalties. This is done by proving compulsory insurance for third party liability. As from the name of the act, it is Public Liability. Public liability insurance policy covers a policyholder from claims from third parties for death or injury or property damage caused by hazardous substances handled in a factory.


  • This law requires all enterprises that own or have control over handling of any hazardous substance, to subscribe to a "public liability insurance policy cover" whereby they are insured against the claims from third parties for death or injury or property damage caused by hazardous substances handled in their enterprise.

  • The compensation payable under this Act is also irrespective of the company’s neglect. The victims who are exposed to hazardous substance used by an industry may file a claim with the Collector within 5 years of the accident.

  • On receipt of an application, the Collector, after giving notice to the owner and after giving the parties an opportunity of being heard, will hold an inquiry into the claim and may make an award determining the amount of relief which appears to him to be just.


Concluding Remarks


In spite of the fact– that styrene gas is ‘hazardous chemical’ under Rule 2(e) plus Entry 583 of Schedule I of the Manufacture, Storage and Import of Hazardous Chemical Rules 1989, it has caused loss of human lives and damaged the environment, and that it could cause potential long-term health effects – the tribunal has chosen to invoke the principle of strict liability when it should have invoked the principle of absolute liability. The application of the principle of absolute liability does not require the cause of incident or the ‘consent’ of the facility’s operators to be known to make any enterprise liable. The liability is triggered by the mere escape of hazardous substances, irrespective of the cause and the present circumstances demand absolute liability because employees who were reportedly preparing to reopen the working area will be compensated for their loss. It is the company’s duty to ensure its employees have a safe working environment, especially when the company deals with a hazardous substance.

77 views0 comments

Comentarios


JOIN MY MAILING LIST

Thanks for submitting!

© 2020 to Mansi Ahuja.

  • Instagram
  • YouTube
  • Facebook
  • Pinterest
bottom of page