Vishakhapatnam Gas Leak: Learning from History ?

A lethal gas leakage was reported in Vizag, Andhra Pradesh, from an industrial unit. This incident took place after the re-opening of the plant since the closing from national lockdown. It took place around 3AM, at the LG Polymers Plant, and led to the leakage of Styrene gas.

This gas leak from the chemical plant occurred in the early hours of 7th May, which quickly spread to the areas in the radius of fiver-kilometers. It killed 11 people and at least 316 people were admitted to hospitals. Police evacuated 4500 families living in the plant’s vicinity. It was found out that the ‘Styrene-Gas’ mentioned earlier was not stored at the right temperature, and the tanks were not properly maintained. Styrene gas is primarily a synthetic chemical, a derivative of benzene, which is a colourless and an oily liquid (aged samples can appear yellowish). According to India's Manufacture, Storage and Import of Hazardous Chemical Rules (1989), styrene gas is classified as- 'hazardous and toxic chemical', and the symptoms can be seen as irritation of the eyes, skin, and upper respiratory tract.

When this tragedy occurred, the immediate threat in the minds was whether it is the occurrence of something similar to the Bhopal Gas Tragedy? A similar case occurred in 1984, the Bhopal Gas Leak, Union Carbide Corporation v. Union of India[1]. In this case, about five-lakh people were exposed to methyl isocyanate gas (MIC), and other chemicals as well. The case was taken to the Supreme Court, by both sides, where the court examined the prima facie material to quantify the damages. The court had to decide as to what damages would be ‘just, equitable and reasonable’, and referred to MC Mehta v. UOI[2] where about 3000 people were killed and more than a lakh were affected. It was held that ‘the amount should be correlated to the magnitude and capacity of the company/enterprise.’ In this case the ‘doctrine of absolute liability’, and the damages paid were about Rs. 715 crores.

The ‘principle of strict liability’ and ‘absolute liability’ are different concepts. The principle of strict liability was evolved in the case of Rylands v. Fletcher {[1868] UKHL 1; (1868) LR 3 HL 330} where it was established that any person who keeps hazardous substances on their premises shall be held responsible if such substances escape the premises and cause any damage. Here, the presence of a dangerous substance and the escape of it are necessities, along with the fact that such dangerous substance kept should have been for a non-natural use. There are also exceptions in the cases of strict liability, which are there if the fault is on the plaintiff’s part, or that what occurred was an Act of God, or that the act was caused by a third-party.

The ‘doctrine of absolute liability’ was laid down in the case of ‘Oleum Gas Leak case’, or the MC Mehta v. Union of India[3] case. Shriram Food and Fertiliser Industry, a subsidiary of Delhi Cloth Mills Limited, was engaged in the manufacture of dangerous chemicals, but the petition filed by MC Mehta for closing down various units of the company was in the first place because of the fact that they were quite hazardous. While the petition was pending, a huge amount of oleum gas spilled from one of the units of the company which resulted in the death of one person, and a few others were hospitalised. The spillage was a result of human blunders and hence came in the concept of absolute liability. The rule of absolute liability is basically the rule of strict liability without the exceptions. According to this rule if a person is engaged in an inherently dangerous or hazardous activity, and if any harm is caused to some person because of any accident which occurred during the commission of such activity, then the person who is carrying out such activity will be held absolutely liable. There are no exceptions, even if the enterprise/person did not mean to cause the harm which happened ultimately. To ensure that victims of such accidents get quick relief through insurance, the government passed the Public Liability Insurance Act (1991).

In the recent case of Vizag gas leak, the Andhra Pradesh High Court, the National Human Rights Commission (NHRC), and, the National Green Tribunal (NGT) took suo-moto[4] cognizance. The Andhra Pradesh HC said “It is a matter of enquiry and assessment that the provisions of the said rules have been observed or not”, as the import, storage, manufacture of hazardous gases requires certain absolute responsibilities by the enterprise. The NDRF from all the cities around were called as the present force was not adequate, the situation demanded more concern. The court said it is concerned with the evacuation, medical aid, and the nutrition of those affected, and issued an order for all private hospitals to be open to the needy. The court has directed the state to take all the steps required to decrease the gravity of all losses. The NHRC took suo moto cognizance of media reports as the right of life of those 11 victims was violated; they issued a notice to the chief secretary of the state and the DGP, for a detailed report of the matter. They also brought the matter to the notice of Union Ministry of Corporate Affairs to check whether all the laws and norms were being followed by the enterprise and demanded quick actions and reports, as they described the situation to be bolt from the blue for the country as everyone was preoccupied by COVID-19 situation. The NGT taking suo moto cognizance directed LG Polymers to pay Rs. 50 crores as damages for the compensation to the claimants, as the public health and the environment were affected adversely; initially and for the time being. They issued a notice to the state’s Pollution Control Board, Central Pollution Control Board, the Ministry of Environment, and the District Magistrate to look into the matter and report the damage caused by the incident.

The hearing date is fixed for 18th May, 2020, and the finding committee has been asked to submit all the details before that. The financial worth of the LG Polymers India Pvt. is also being calculated to judge the extent of damages to be fixed. The NDRF and the police have been functioning properly near the site and assisting the public. The NGT and NHRC have stepped in to assist the observation of the situation, along with the other authorities. The court’s primary focus, for now, is to look after the victims and ensure their proper care, and says that the facts should be finalised by the fixed date of hearing, so further action and steps can be taken. Whether or not the act caused was intended by LG Polymers Plant does not matter, because there was a huge loss caused to the environment and the public in the vicinity, hence it should be a case of absolute liability. There are no exceptions or defences whatsoever to this absolute liability case. The damages to be compensated for must be raised by the court to take care of the victims, and also to ensure more safety is taken by all other plants operating nearby, thereby setting an example for other enterprises. Although for the time being, the facts are not clear about what exactly happened which led to the leakage of styrene gas, but it is quite possible that LG Polymers Plant might seek the principle of strict liability in defence to ultimately seek out the Act of God exception, so as to escape the liability of damages. Amidst the outbreak of COVID-19, it was challenging for such companies to conduct checks on their units and ensure maintenance and safety, which can be a defence on LG Polymer Plant’s part; however, the deaths and hospital bills shall regardless be compensated for. As the company is an international one, based in South Korea, the deciding of compensation and liabilities might be more complex. The past judgments regarding similar cases like Oleum Gas Leak, and Bhopal Gas Tragedy must assist the court in its decision, but since it is not as extreme as Bhopal Gas Tragedy, and neither does it fit into the exact judgment of Oleum Gas Leak case either, hence, this case might lead to different judgment or a new approach towards tackling the damages part.

[1] AIR 1984 SC 273

[2] AIR 1987 SC 1086

[3] ibid., 2

[4] Suo-moto cognizance is a Latin term, which means an action taken by a government agency, court or other central authority on its own apprehension

[The author is Bhavesh Kumar]

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