Visakhapatnam Gas Disaster: Strict or Absolute Liability?

Visakhapatnam: The Jewel of the East Coast.

This article is written by Deyashini Mondal, a 1st year B.A., LL.B. (Hons.)  student of Symbioisis Law School, Pune.

The Incident

It was at 2:30 am on 8^th May 2020 that this disaster occurred[1]. The residents of the RR Venkatapuram expected the Thursday to be like any other day but who would have known that because of the negligence of a few people, thousands of people would struggle to breathe and eleven people would not see a new day. The leak was so intense that it had turned into fog and it took them almost seven hours to actually figure out what the cause of the fog was.

Many news channels that day had their reporters out on the streets to inform the rest of the country about the impact of this gas leak. I had come across videos on various news channels where a perfectly functioning woman helped carry her mother who had fainted because of inhalation of the gas and while in that process, the lady also fainted on the foot path. Some of the villagers complained that their skin had started to itch and when he opened his eyes they too, had started to burn . Sensing danger he woke him family up.

It is sad to note that some villagers had lost their hopes of living as most of them were unable to breathe and see anything for a while. Rescuers were immediately sent for these villagers. The LG Polymers were asked to deposit Rs 50 crores with the collector.

Cause of this gas leak

Due to the Nationwide corona virus lockdown, the LG Polymers had been shut for 40 days.[2] The LG Polymers officials and the state authorities were said to be investigating the cause of the leak and a preliminary situation report by the district officials said that the cause was the malfunction in equipment which led to a temperature rise and the organic compound Styrene which is normally liquid, started to vaporize. Styrene is a rather important commercial chemical, which is used in making plastics, paints, synthetic rubber, pipes, food containers etc.

A team of Forensic science laboratory in Andhra Pradesh said that Styrene should be mixed with tertiary butyl catechol (TBC) and a temperature below 20 degrees centigrade must be maintained in order to prevent from undergoing self- polymerisation. [3]This was not ensured during the period of lockdown and whatever existed, got inactive. The temperatures raised upto 150 degrees centigrade where the boiling point of styrene is 146 degrees centigrade.

Legal Aspects

This disaster was automatically compared to the Bhopal gas tragedy i.e. in the case of Union Carbide Corporation v Union of India[4] whose facts are highly similar to the present case. The LG polymers company however, took the defence of not having an sort of information before hand about the possibility of the gas leakage which was however, known in the case of the Union Carbide Corporation.

Nonetheless, taking into account the nature of the substance involved and the activities undertaken by the company it would be fair to hold the South Korean Company absolutely liable for the damage it had caused.

Another similar case was that of M.C Mehta v Union of India[5] where there was an oleum gas leak from the Shriram Foods and Fertilisers Industries, Delhi which killed a lawyer and a few were injured. The damage in this case was considerably lesser, yet, absolute liability was applied. Justice P.N. Bhagwati while hearing this case concluded that strict liability couldn’t be applied as the principle was created before advancements in technology and the economy.

The principle of absolute liability was thus evolved which says that whenever any enterprise is dealing with any dangerous or hazardous activity that threatens the workers of the enterprise and those living nearby, it owes and absolute and non-delegable duty to the community that no harm will be caused. If there is really any harm caused then the enterprise cannot resort to any defense or use the exceptions under strict liability. The enterprise can’t claim that the harm has not been caused due to negligence (absence of due care) or that it had taken all reasonable precautions.[6]

According to the NGT, Styrene gas is a hazardous chemical substance under Rule 2(e) read with Entry 583 of Schedule I to the Manufacture, Storage and Import of Hazardous Chemical Rules that require emergency plans both on-site and off-site to ensure prevention of damage.[7]

The National Green Tribunal also looked into the legal aspect of Strict Liability where it is stated that a person who bring onto his/her land something which is hazardous in nature and it escapes then person will be strictly liable for this act. An important point to note is that the person shall be liable only if it was a non-natural use of land. Strict liability unlike absolute liability has exceptions:

• Vis Major (Act of God)
• Act of a third party
• Statutory Authority
• Volenti Non fit Injuria
• Plaintiff’s own default.

Despite of the case being highly fit for absolute liability, the tribunal has decided to apply strict liability.

For strict liability to be applicable to this case, the cause of the leak must be known to the plaintiff. As mentioned above, the FSL team had after a lot of research found out that it was due to the auto polymerisation that the styrene had vaporised and escaped.  This fact was however, unknown to the LG company.

In the case of Absolute liability however, the cause of incident is not compulsory to been known by the plaintiff. The mere escape of the hazardous substances triggers the liability. Therefore, the present circumstances of the case urge the tribunal to apply absolute liability as the workers who were there to reopen the operations of the company suffered huge losses and strict liability loosens that argument. Keeping in mind the present situation of lockdown which has taken a toll on the income and well-being of the workers, they should be compensated as they deserve to work in a safe environment.

It is the responsibility of the government to undertake every effort in order to rightly prosecute the people responsible for this tragedy. Looking into the present situation of the case, it is highly unlikely that they will push the South Korean company much. The NGT should have however, applied absolute liability to at least ensure the well-beings of the workers and aggrieved people where the amount of compensation would be much higher than what will be given now with the application of strict liability.[8]

[1] https://timesofindia.indiatimes.com/city/visakhapatnam/human-error-led-to-lg-styrene-leak-fsl/articleshow/75665680.cms

[2] https://www.ndtv.com/india-news/visakhapatnam-lg-polymers-gas-leakage-8-dead-over-1-000-sick-after-gas-leak-at-andhra-chemical-plant-2224643

[3] https://timesofindia.indiatimes.com/city/visakhapatnam/human-error-led-to-lg-styrene-leak-fsl/articleshow/75665680.cms

[4] Union Carbide Corporation v Union of India, AIR 1987 SC 1086

[5] M.C Mehta v Union of India, 1987 AIR 1086

[6] https://thewire.in/rights/vizag-gas-leak-ngt-strict-absolute-liability

[7] https://www.newindianexpress.com/states/andhra-pradesh/2020/may/08/vizag-gas-leak-ngt-issues-notices-to-centre-lg-polymers-india-directs-company-to-deposit-rs-50-crore-2140742.html

[8] http://www.legalservicesindia.com/article/2155/Strict-and-Absolute-Liability.html