As we all are aware of the Vizag Gas Leak tragedy that took place in the city of Vishakhapatnam on 7th May 2020 consequently, many people died and injured. So, what is the liability of the owner of the industry? What are the rights of the victim so injured? And what is the relevant legislation in this regard in India? This Article endeavors to answer these questions and provides an insight into the current status of the Vizag Gas Leak Tragedy.
On 7th May 2020 at around 2:30 AM a toxic gas ‘styrene’ leaked from its storage unit from a factory located at RR Venakatapuram near the city of Vishakhapatnam bringing about 11 deaths and a few thousand people being grievously injured. The Vizag Gas Leak can be classified as a disaster, more specifically an industrial accident.
We all are aware of the term ‘disaster’ but what its legal meaning and when a situation is defined as “Disaster”? Section 2(d) of Disaster Management Act, 2005 defines disaster is a catastrophe, mishap, calamity or grave occurrence in any area arising from natural and man-made causes or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area. Taking into consideration this definition it is evident that the tragedy that took place in the city of Vishakhapatnam on 7th May 2020, can be considered as a disaster. More specifically, it is an industrial disaster which is caused by industrial companies either by accident, negligence, or incompetence.
Further, an industrial disaster is a form of an industrial accident. According to the Indian Factories Act, 1948 it is a mishap takes place in industrial establishments bringing about bodily injury to a person which disables such persons to resume their duties in the next 48 hours. According to H.W. Heinrich, “an accident is an unplanned and uncontrolled event in which the action and reaction of the object, substance, person or radiation result in personal injury or probability thereof.”
Classification of Industrial Accidents
Industrial accidents are generally classified into two categories:-
The external industrial accident takes place in the form of chemical spills, discharge of toxic gases, fires, and radiations. These incidents affect the environment at a great extent and are no less than a disaster whereas internal industrial accident encompasses metalworking, agriculture, construction, food-making, lifting equipment, pressure vessels, and so on. Simply, its influence is restricted to the premises and equipment in the factory.
In order to run an industry dealing with chemicals and similar hazardous substances the Ministry of Environment and Forest exercising the power conferred by Section 6, 8 and 25 of the Environment (Protection) Act, 1986 enacted Manufacturing, Storage, and Import of Hazardous Chemicals Rules, 1989 on 27th November 1989. The Rules, 1989 provides a comprehensive statutory framework to regulate the activity of an industry engaged with chemical manufacturing, storage, and import. Section 2(e) of the Rules, 1989 defines hazardous chemicals into three categories. The first category includes the chemicals which satisfy the criteria outlined in Part 1 of Schedule 1 or column 2 of the First schedule. Further, Part 2 of the Schedule provides a list of toxic and hazardous chemicals. The second category says all those chemicals are hazardous which are listed in Column 2 of the schedule. The third category states any chemical listed in Column 2 of Schedule 3. As far as the nature of the Styrene it is included in the list of hazardous and toxic chemicals of Part 2 of Schedule 1 of the Rules, 1989.
The responsibilities of an occupier of such industries are:-
Section 18 provides that when a hazardous chemical is to import in India the person responsible for import shall provide before 30 days the date of import with all the necessary information pertaining to the toxic chemical to the concerned authority.
The person importing such chemicals will maintain the records of the hazardous chemicals imported as specified in Schedule 10 and the records so maintained shall be open for inspection by the concerned authority at the State or the Ministry of Environment and Forests or any officer appointed by them in this behalf.
Section 5 states that in case of major accident takes place on a site or in a pipeline, the occupier shall within 48 hours inform the concerned authority (mentioned in Schedule 5) about that accident thereafter, the concerned authority will scrutinize such major accident and shall send requisite information within 90 days to the Ministry of Environment and Forests through the appropriate channel.
Section 13 of the Act, entrusts a responsibility to the occupier to prepare and keep amended an on-site emergency plan containing details specified in Schedule II and detailing how major accidents is to be handled on the site of on-going industrial activity. Furthermore, The occupier shall ensure that a mock drill of the on-site emergency plan is conducted every six months
Section 14 of the Act gives a duty the concerned authority to prepare and keep amended an adequate off-site emergency plan containing particulars specified in Schedule 12 and the details as to handling and preparation of emergency on account of major accidents on that site.
Section 15 of the Act makes the occupier obligatory to furnish information related to the likelihood of major accidents to the persons residing outside the site.
Power and duties of the Concerned Authorities
A yearly inspection of the industrial activity shall be conducted by the Concerned Authority.
In case of import of hazardous chemical if the concerned authority of the State is of the opinion that the chemical should not be imported taking into consideration of environment or safety in such cases Authority have the power to stop the import.
The concerned Authority at the State shall communicate the concerned Port Authority as well to take appropriate steps regarding safe handling and storage of hazardous chemicals while off-loading the consignment within the port premise.
LIABILITY IN CASE OF INDUSTRIAL ACCIDENTS
In the Vizag gas leak disaster, the National Green Tribunal took the suo moto cognizance and passed an interim penalty of Rs. 50 Crore on the LG Polymers India. Further, it sought responses from the Centre and other concerned authorities about the damages caused to life, health, public, and environment. Its order 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 a hazardous or inherently dangerous industry.”
PRINCIPLE AND ORIGIN OF “STRICT LIABILITY”
The principle of strict liability has been implanted in the cases of such accidents around the world. It originated in the case of Rylands and Fletcher in 1868. The issue addressed, in this case, was whether the defendant can be held liable for the negligent actions of others resulting in an entity on his land escaped? In this case, Justice Blackburn, who was also a common-law jurist this principle as “the person who, for purposes of his own, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape.” The judgment came in favor of the Plaintiff and the Defendant was held liable for damages caused to Plaintiff. Since then the rule of strict liability was adopted by many countries. As per the Legal Information Institute of Cornell Law School, “In both tort and criminal law, strict liability exists when a defendant is liable for committing an action, regardless of what his/her intent or mental state was when committing the action.”
Essentials of Strict liability are as follows:-
1. Dangerous things
In order to make the Defendant liable for damages, it is essential to prove that the thing escapes from the Defendant’s land is a dangerous thing. Here, the dangerous thing means something which can cause huge damage when it escapes, for example, noxious fumes, sewage, electricity, gases, explosives, etc.
The second essential of this rule is the escape of dangerous things from the area Defendant. The escape must be of such nature that would out of reach of the Defendant. For illustration, the poisonous plants mounting on the land of the defendant are eaten by cattle of the plaintiff. Here there is no escape of dangerous things but as soon as the plant escapes from the land of the defendant and then eaten up by the cattle of the plaintiff the condition of strict liability will be fulfilled. In the case of Read v. Lyons, the same principle was applicable and held no liability takes place when no escape of dangerous things happen.
3. Non- Natural Use of Land
This essential was included in the landmark case of Rylands v. Fletcher it implies that the land must be used for some non- natural activity such as in this case the reservoir was made for collecting water which was a non- natural use. For the purpose of being a non- natural use of land, there should be a special or unusual use of land which may cause huge danger to others.
- Plaintiff’s Fault
Damage caused by the escape due to the plaintiff’s own default was considered to be a good defense in the case of Rylands V. Fletcher. This exception refers that if the plaintiff suffers damage by his own intrusion into the defendant’s property, he cannot complain about the damage so caused.
- Act of God
Justice Blackburn defined the Act of God as “circumstances which no human foresight can provide against and of which human prudence is not bound to recognize the possibility.” If the escape has been unforeseen and because of supernatural forces without any human intervention, the defence of the act of god can be pleaded.
- Consent of the Plaintiff
Where the plaintiff has consented to the accumulation of the dangerous thing on the defendant’s land, the liability of strict rule does not arise. Such consent is implied where the source of danger is for the ‘common benefit’ of both of plaintiff and defendant.
- Act of Third Authority
If the harm has been caused due to the act of a stranger, who is neither the defendant’s several nor the defendant has any control over him, the defendant will not be liable under this rule.
- Statutory Authority
It has always been noted above that an act done under the authority of a statute is a defence to an action for tort. The defence is also available when the action is under the rule of strict liability. Statutory authority cannot be pleaded as a defence when there is negligence.
As far as the position of India is concerned the emphasis was given to adopting more strict rules after the industrial disaster of Oleum Gas Leak in 1984. The Supreme Court of India developed a new principle of ‘absolute liability’ in the case of MC Mehta v. Union of India which is also known as Oleum Gas leak case.
The principle of absolute liability gives no defence of any exception as mentioned in strict liability in the case of hazardous industrial disaster and held them absolutely liable. Chief Justice PN Bhagwati, in the said case, observed, “We in India cannot hold our hands back, and I venture to evolve a new principle of liability which English courts have not done. We have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous or inherently dangerous industries which are concomitant to an industrial economy, there is no reason why we should hesitate to evolve such principle of liability merely because it has not been so done in England.”
The principle of absolute liability states that if an enterprise deal with hazardous or dangerous activities and it causes huge destruction and harm to anyone in the event of an accident in the handling of hazardous activity then the enterprise is liable to be absolutely and strictly liable. Such industry or enterprise is liable to compensate each and every person injured in such disaster and this liability is not subject to any of the exceptions of strict liability.
The rule of absolute liability given preference over strict liability rule in the case of Bhopal Gas Tragedy and the principle set forth by the Supreme Court in the M.C. Mehta case was followed. Post-Bhopal Gas Tragedy, a Public Liability Insurance Act, 1991 was enacted to provide relief to injured persons as it “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.”
In the present case of Styrene gas leak, it is being stated that the hazardous chemical used for the manufacturing of expandable plastics. It is to be stored at a temperature below 17degree Celsius and due to nationwide lockdown the plant was shut but the maintenance activities were going on as the pre-determined schedule. The issue commenced when this hazardous chemical did not store at an appropriate temperature which builds up pressure in the storage chamber caused the valve to break consequently, the gas leaked. However, in order to find out the real cause, a high-level committee has been set up. The National Green Tribunal soon after the incident took cognizance but a question arises as to why the rule of Strict Liability is imposed instead of Absolute Liability?
- Law of Torts by Dr. R.k. Bangia.
- The Manufacturing, Storage, and Import of Hazardous Chemical Rules, 1989.
- “Vizag gas leak: How events unfolded & why it happened” on India Today.
- Explained: Strict liability rule that NGT wants to apply in the Vizag gas leak case by The Indian Express.
- Rylands v. Fletcher (1868) L.R.3 H.L.330.
- M.C. Mehta v. Union of India, A.I.R 1987 S.C. 1086.
- Union Carbide Corporation v. Union of India, A.I.R. 1992 S.C. 248.
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