The disastrous leak of hazardous chemical gas (styrene) from the LG Chem. Polymers factory that has killed several people at Gopalapatnam on the outskirt of the port city of Visakhapatnam in Andhra Pradesh has left at least 11 dead and hundreds sick, which reminds us an eerie incident reminiscent of the Bhopal gas tragedy in 1984. This again raises a serious question on our legal system whether we are still ready after the passing of nearly 36 years of evolution of rule of strict liability to cope with such a situation.
What is Styrene Gas?
• A benzene derivative, it is an oily fragrance-free liquid which evaporates and mixes with air and its organic compound with the formula C8H8;
• It is used in factories as a liquid, but evaporates easily and has to be kept at a temperature under 20 degrees C;
• It is used mostly in manufacturing of pipes, insulation, automobile parts etc.;
• The exposure to styrene is through ingestion, inhalation, or contact (skin).
History of the troublemaker-
• The factory from which it leaked established in 1961, originally as Hindustan Polymers to manufacture polystyrene.
• It has emerged with MC Dowell & Co. of the UB Group in 1978, then taken over in 1997 by South Korea based LG Chem. company, which renamed it as LG polymers.
• The factory manufactures general-purpose polystyrene and engineering plastic compound.
• It is located at RRV Puram in Goplalapatnam 15 Km from Vishakapatnam city.
Cause of the Leakage:
• A technical glitch in the refrigeration unit attached to the two styrene tank at LG polymers Limited caused the vapour leak; and
• According to the District Collector statement, ‘styrene monomer is normally in a liquid state and is safe below 20 degrees Celsius. But, due to the malfunctioning of the refrigeration unit, the chemical started glorifying.
What the Law is?
In several cases 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. There are certain specific 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 derivatives from the case laws. The rule of Strict Liability was laid down in the case of Rylands v. 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 v. 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.
Rule of Strict Liability
In 1868, The House of Lords laid down the rule recognizing ‘No-Fault’ liability in the famous case of Ryland V. Fletcher. In this case, it is propounded that,
“whenever a person brings anything on his land and keeps there that dangerous thing he will be prima facie liable for the damage caused as a result of escape of that very thing. The liability arises not because the defendant is negligent, but because-
1) There was a non- natural user of the land.
2) The defendant brought some dangerous thing and he kept the same on his premises.
3) That thing escaped and,
4) Such escape resulted into damage to the plaintiff.”
The strict liability under this rule is conditioned by two elements :
Firstly, escape from the land of something likely to do mischief if it escapes. The escape for the purpose of applying the preposition in Rylands v. Fletcher, means escape from the place on which the defendant has occupation or control overland to a place outside his occupation or control [Read v J. Lyons].
Secondly, there should be a non-natural use of land. This means that land should be brought “some special use bringing with 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”. Thus, bringing water into a cistern in a house is natural to use but not water stored in bulk for industrial purposes.
Exceptions to the rule:
The following exceptions to the rule have been recognized by Rylands v. Fletcher and some later cases:
1) Plaintiffs own fault;
2) Act of God or vis major;
3) Consent of the plaintiff (volenti non fit injuria);
4) Act of the third party;
Rule of Absolute Liability
Absolute liability is a concept of law evolved in India, after the case of M.C. Mehta vs. Union of India popularly known by the name of the Oleum Gas Leak case. This case was a landmark judgment case for the principle of absolute liability. This principle is a kind of strict liability with no exception.
That is under this principle the defendant won’t be allowed to lead any defence as there was under Rylands vs. Fletcher case.
Let us have a look at the rationale behind the evolvement and what was held in the M.C. Mehta vs. Union case.
Why did the 19th-century rule need to be modified?
The rule of Strict Liability was subject to many exceptions therefore practically very little ruled was left. The old rule being with many exceptions was not capable to make any individual strictly liable for his negligence. Therefore it was essential to making harder rules with the same purpose.
The reason for the evolution of this principle was stated by Honourable Justice P.N Bhagwati as- “In the 19th century, the time when nature industrial developments were at the primary stage, in today’s modern industrial society where hazardous or inherently dangerous industries are necessary to carry out development program, thus this old rule cannot be held relevant in the present-day context. Also, one cannot feel inhibited by this rule which was evolved in the context of totally different social and economic structures”.
The following modifications in the existing doctrine of the case of Rylands v. Fletcher led to the doctrine of absolute liability that prevented the defendants of M.C. Mehta v. UOI Case from taking up any defense against payment of compensation:-
“If an industry or enterprise is involved in any inherently dangerous activity, then for any damage arising out of the conduction of that activity, the defendants (the owners of the industry) will have no access to any defense or exception and will be absolutely liable to pay compensation to the aggrieved parties. The enterprise will be held responsible for all possible damages or consequences resulting from the activity. This will make such industries provide safety equipment to its workers to prevent any mishap. Therefore, this will safeguard the interests of the workers and will give them a refined, safe working atmosphere. In cases where strict liability applies, compensation paid is according to the nature and quantum of damages caused but in cases of absolute liability, compensation, or damage to be paid is exemplary in nature. The amount decided upon should be more than the damage caused as industrial hazardous accidents generally causes mass death and destruction of property and environment. The principle of absolute liability was considered as a tool of prevention of mass destruction or avoidance of danger to the life of masses.”
Bhopal Gas Leak Disaster Case
In 1984, on the night of 2nd December mass disaster, the worst in the recent times was caused by the leakage of Methyl Isocyanate and other toxic gases from the Union Carbide India Ltd, (UCIL) at Bhopal. It is a subsidiary of Union Carbide Corporation (UCC), a multinational company registered in The USA. About 2660 people died instantaneously and lakhs of people were seriously injured.
However, the toll of death had risen to 4000. Several suits were filed against UCC in the United States District Court of New York by the legal representatives of the deceased and many of the affected persons for damages. The Union of India under the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 took upon itself the right to sue for compensation on behalf of the affected parties and filed a suit for the same. All the suits were consolidated and dismissed by Judge Keenan on the ground of forum inconvenience. On 12th May 1986, Judge Keenan held that the Indian judiciary must have the “opportunity to stand tall before the world and to pass judgment on behalf of its own people.”
After the judgment of Keenan Judge the Government of India in the exercise of its power under the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 filed a suit in the District of Bhopal which awarded interim compensation for the amount of Rs. 350 crores. This amount, on an appeal to Madhya Pradesh High Court preferred by UCC, was reduced to Rs. 250 crores. This order was challenged in the Supreme Court.
While the suits were pending in the New York District Court, an offer of 350 million dollars had been made by UCC for the settlement of the claim. This effort continued when the dispute arising out-of interim compensation ordered by the District Court of Bhopal came before the High Court. However, the decision of the Madhya Pradesh High Court was challenged by both, UCC and the Union of India. The Government of India assailed the reduction in the amount of interim compensation and UCC contended that in a suit for damages where the basis of liability was disputed the Court had no power to make an award of interim compensation. It is in this case that the matter was settled by two orders dated 14th and 15th of February, 1989. On 14th February 1989, the Supreme Court recorded the settlement for claims reached between the parties in the suit for 470 million U.S. Dollars and as a consequence, all civil and criminal proceedings against UCC and UCIL and their officers were terminated. On 15th February 1989, the terms of settlement signed by learned Attorney General for the Union of India and the Counsel for the UCC was filed.
The Settlement of the claims which was recorded by the Supreme Court was assailed mainly on two grounds:
(a) The criminal cases could neither have been compounded nor quashed nor could the immunity has been granted against criminal action,
(b) The amount of compensation was very low.
As to the withdrawal of criminal cases, it was held that “the quashing and termination of the criminal proceedings brought about by the orders dated 14th and 15th February 1989 required to be, and are, hereby reviewed and set aside.”
As to the quantum of compensation, it was argued that the principle laid down in M.C. Mehta v. Union of India should be adopted. It was held by the court that the “settlement cannot be assailed as violative of Mehta principle which might have arisen consideration in a strict adjudication. In the matter determination of compensation also under the Bhopal Gas Leak Disaster (PC) Act, 1985, and the Scheme framed there-under, there is no scope for applying the Mehta principle inasmuch as the tortfeasor, in term of the settlement- for all practical purpose – stand nationally substituted by the settlement and which now represent and exhausts the liability of the alleged hazardous entrepreneurs, viz. UCC & UCIL. We must all add that the Mehta principle can have no application against the Union of India since requiring it to make good deficiency. If any, we do not impute to it the position of a joint tortfeasor but only of a welfare state.
The Bhopal gas leak disaster and the Shriram gas leak tragedy provided an impetus for the passing of the Public Liability Insurance Act, 1991, which was incorporated on 22nd January, 1991. The act provides for ‘Mandatory Insurance’ to provide immediate relief to the persons affected by accidents occurring while handling any hazardous substance. The act covers every industry, public or private, which handles hazardous substances the Act incorporates the ‘no-fault’ liability standard.
Is the rule still is in line with the present scenario?
Yesterday, the National Green Tribunal, New Delhi has ordered LG Polymers to deposit Rs.50 Crores with the District Magistrate, Vishakhapatnam, in connection to a major leak of Styrene gas from its polymer plant situated in RR Venkatapuram village.
However, the NGT observed in the order that the situation attracted the principle of “strict liability”.
“Leakage of hazardous gas at such a scale adversely affecting public health and environment attracts the principle of ‘Strict Liability’ against the enterprise engaged in a hazardous or inherently dangerous industry”.
Thirty-six years after the Bhopal disaster, it is distressing to see accidents from hazardous industries. We need a more stringent law on the subject to stop future mishaps. Commenting on the need, a decade ago, Late MR Arun Jaitley while discussing the Civil Nuclear Liability Bill, 2010 on Aug 30, 2010, had said:
“We have a sad and misfortune experience of Bhopal gas leak as this law deals only with nuclear incidents, I think two lessons still remains, If there are incidents and accidents which are not on account of a nuclear incident but because of which a large number of casualty and damage does take place, our legal regime even today is only the conventional legal regime that the victims go to a civil court, and then have their remedies adjudicated, and we are all conscious of the limitations of our legal system that it almost takes decades, not years, in order to compensate the victims…”
“So, I would urge the Government while dealing with this expeditious legal remedy machinery for victims of a nuclear incident to also consider those other incidents of this kind, which are not caused on account of a nuclear leakage, also there ought to be a similar law which would deal with it.”
While the civil nuclear law does not deal with criminal remedies, he said criminal remedies are going to be the same, whether it is a nuclear leak or a gas leak or a chemical leak, and argued that the legal architecture regarding them needs to be strengthened. “…when you store or utilize the hazardous material and it is utilized in a manner, the fact that there is a leakage itself is a proof that you did not handle it properly, and, therefore, you must be taken to task for this,” Jaitley said.
After going through the above improvement we can whittle out following expectations that it is the judiciary that has always came forward by different concepts to safeguard the interest of its people by evolving so many principles that are in line with the present scenario. But here it is much needed that the legislature should also act proactively, to come forward with stringent laws to avoid future mishaps as the safety of people should be a paramount consideration for every law.
(Views are personal)
1. Rylands v. Fletcher, UKHL 1 (1868)
2. M.C. Mehta v. UOI SC 1086 (1987).
3. Union Carbide Corporation v. Union of India 4 SCC 548 (1991).
4. Public Liability Insurance Act, 1991, No. 6, Acts of Parliament, 1991(India).
5. Ratanlal and Dhirajlal, THE LAW OF TORTS, (26th Edition)
6. J.N. Panday: Law of Torts(9th edition)
7. R.K. Bangia: Law of Torts(23rd edition)
8. 248, W.V.H. Rogers, Winfield And Jolowicz Torts, 8th ed. (2010).
9. Indian Express newspaper dated 8-may-2020
10. Deccan’s chronicle Hyderabad newspaper dated 8-may-2020.
About author – This article is authored by Advocate Gaurav Prakash Jaiswal. He is a Partner at NAS Legal & Advocate Delhi High Court.