November 1, 2020

AN OVERVIEW ON VIZAG GAS LEAKAGE INCIDENT

We are already in the battle against the Corona pandemic, on May 7 comes the shocking news of gas leakage in Vishakhapatnam. Numbers of people died and others were badly injured. The factory is owned is by LG, a South Korean corporation. Styrene gas is used by the factory, it’s the hazardous chemical substance. It is the flammable liquid, used in the manufacturing of polystyrene plastics, fibreglass and latex. Its exposure to human body can affects respiratory system and central nervous system. The gas has to be maintained at certain temperature. In the present case usability in temperature has lead to the auto-polymerization. This has resulted in the gas leakage.

The National Green Tribunal held the LG polymers liable under the old English law of ‘Strict Liability’. The concept of ‘strict liability’ came up in the case of Reylands v. Fletcher (1868 LR 3 HL 330) it was held that people must pay compensation for the damages even they are not at fault. But certain exceptions were given in cases- ‘by act of god’, like earthquake, or flood or by an act of stranger who is not answerable to the defendant. Then the defendant get absolved of the liability.

Blackburn J. in one of the leading judgements laid down ” The rule of law is that the person, who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his risk; and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape”.

The strict liability under the Rayland’s rule is based on the following two conditions:

· Firstly, there should be an escape from the land of something likely to do mischief if it escapes. The escape for the purpose of applying the propositions in Ryland’s, means escape from a place pf which the defendant has occupation of or control over land to a place which is outside his occupation or control.

· Secondly there should ne some non-natural use of land. This means that land should be brought under some special use, bringing with it increased danger to others, and must not merely be the ordinary use of the land, or such a use as is proper for the general benefit of the community.

The concept of Strict liability was also applied in the case of Bhopal Gas Tragedy, in this the chemical reaction started in the Union Carbide (India) Limited factory that culminated in the leakage of deadly Methyl Isocyanate (MIC) gas from one of the tanks of the factory. As a result, a cloud of gas gradually started descending and enveloping the city in its lethal folds. And the city and lakes turned into a gas chamber.

In the tragedy around 3000 lives of innocent people were lost and thousands and thousands of people were physically impaired or affected in several forms.

But this concept was declared redundant by the Supreme Court in 1987 in the case of M.C Mehta v. Union of India, evolved the new principles of tortuous liability i.e. the rule of ‘Absolute Liability’. It expressly declared that new rule wasn’t subject to any exceptions that were given in rule of Strict Liability laid down in Rylands v. Fletcher. The exceptions need to be removed from the rule as any havoc caused due to the established hazardous industries in highly dense population, then they can get away by pleading one of the exceptions. For example when the escape of the substance has caused damaged, that is due to the act of the stranger, there is no liability under Rylands Rule.

In this case M.C Mehta was seeking the closure of Sriram Industries as it was engaged in the manufacturing of hazardous substances and is located in thick population in the area of Delhi. Meanwhile when the petition was pending oleum gas leakage happened, in this three judge bench allowed the partial opening of the industry. On the behalf of the affected people, Delhi Legal Aid and Advice Board and Delhi Bar Associations filed applications for compensation in the original petition of M.C Mehta. It was held that right to life contains the right to claim compensation to victims of pollution hazards.

Measure of Liability

The Supreme Court in M.C. Mehta observed: ”The Rayland’s Rule was evolved in the 19th century at that time science was not that evolved. There is need to make changes in the previous rule so that we can have new norms to fight against the highly industrialized economy”.

The court introduced a new ”no-fault” liability standard, stricter than strict liability. Any Enterprise involved in the hazardous or inherently dangerous activity resulting for instance- in the escape of the toxic gas the enterprise is absolutely liable, he won’t be subject to any of the exceptions that were given in the Strict Liability or Ryland’s rule. That enterprise owes absolute duty to the community, it should work diligently an d if any mishappening occurred then it will be absolutely liable to compensate the loss.

Measure of Compensation

The Supreme Court also laid down the measure of compensation should be correlated to the magnitude and capacity of the enterprise. The lager, the enterprise, lager is the compensation payable by it. In strict liability the compensation made was ordinary or compensatory damages are awarded, while in Absolute Liability, exemplary damages are awarded.

In Indian Council for Enviro- Legal Action v. Union of India (AIR 1996 SC 1446) the apex court approving the rule laid down in Shriram case, reiterated that once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make the loss caused to another person by his activity irrespective of the fact whether the reasonable care he took while carrying on his activity is by far the most appropriate one. It is the enterprise alone that has the resource to discover and guard against hazards or dangers and not the person affected.

Conclusion

The gas leakage tragedy is not happening for the first time, we haven’t learnt from the past mistakes of Bhopal Gas Tragedy and Delhi Gas Tragedy, which resulted in deaths of many people.

Imposes a no-fault liability on the owner of hazardous substance and requires the owner to compensate victims of accident irrespective of any neglect or default. For this, the owner is required to take out an insurance policy covering potential liability from any accident. Ensuring public safety, a comprehensive safety audit of all the industries should be taken up and a Standard Operating Procedure should be enforced.

(https://www.insightsonindia.com/2020/05/09/insights-into-editorial-visakhapatnam-gas-leak-what-is-styrene-gas/)

Author Details:

Ankita Sharma (Faculty of Law, University of Delhi)

The views of the author are personal only. (if any)

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