Principle of Absolute Liability: Evolution & LG Polymers Vizag

Principle of Absolute Liability: Evolution & LG Polymers Vizag | Overview

• Introduction
• Polluter Pays Principle: Evolution
• Strict Liability: Evolution
• Absolute Liability: Evolution
• Absolute Liability v. Strict Liability
• Conclusion

The recent introduction of the Principle of Absolute Liability has been greatly responsible for dispensing justice to various facets of our ambient structure including the environment. Lethal gas leaks have been part and parcel of the recent Indian history owing to industrial developments. This has led to the stringent implementation of the law of torts through the Indian Judiciary as the law of torts per se was neither codified nor developed. We, thereafter, followed the path of the English Common Law and moved from No liability to Polluter Pays Principle to Strict liability to finally the most recent one, Absolute liability.

With the advent of Absolute Liability principle, the Indian Judiciary has now enabled itself to revolutionarily transform the tortuous law. This article tends to trace back the history of absolute liability and its application on the recent styrene gas leak from LG Polymers in Visakhapatnam in Andhra Pradesh.

Introduction

Keeping in mind the Law of Torts and the Environmental Law, an enterprise, that is engaged in some inherently dangerous or hazardous activity, must do so with caution and utmost safety. Even after undertaking such duty of care if any harm is caused owing to the activities of the establishment, then it is absolutely liable to compensation not just to the individuals affected but also the environment and the defence that the enterprise took all due care and the harm was caused without any negligence on its part is no excuse to absolve the enterprise from such liability.

However, such a stringent rule that is applicable today had a journey that started from the adherence of the Common Law. It started with the Polluter Pays Principle, thereafter the Principle of Strict Liability and lastly and most recent one the Principle of Absolute Liability.

These aforementioned principles and their evolution are discussed in detailed hereunder along with the significant case laws.

I. Polluter Pays Principle: Evolution

Polluter Pays Principle refers to the liability of the polluter to pay compensation for the damage caused to the environment and to the sufferers. The objective is to bring the status quo of the environment and the individuals as it was before the incident happened.[1]

The principle of polluter pays was defined and explicitly applied by the Apex Court in case of Indian Council for Enviro Legal Action v. Union of India[2] wherein five industries of Rajasthan were engaged in the production H acid.

In this process, untreated toxic sludge and azo dye were discharged. In the course of time, the rainwater washed the toxic sludge into the bowels of the earth thereby, polluting the underground and river water, making the fields’ infertile leading to migration of the village. The court observed that sustainable development includes redemption of damaged environment and therefore, the polluter ought to pay the cost of reversing damaged ecology and to compensate individual sufferers.

Thereafter, in the case of Vellore Citizens Welfare Forum v. Union of India[3], public interest litigation was filed against industries and tanneries in Tamil Nadu for pollution owing to enormous discharge of untreated effluents. Polluted water rose causing non-availability of drinking water for residents.

The court while holding the tanneries liable ordered them to pay for the pollution caused by them in the past, leading to degradation of the environment and affecting the living life of the residents in the vicinity. Through this decision, the Polluter Pays Principle and the Precautionary Principle was ingrained in the Indian environmental laws.

II. Strict Liability: Evolution

The evolution of strict liability principle took place in 1868 with the case of Ryland v. Fletcher [4] wherein a reservoir, where water was collected, was deemed to be non-natural use of land as it was not for domestic purpose, instead, it was for the purposes of energizing a mill and the defendant was held liable for the loss caused to the plaintiff owing to escape of water from the former’s land to the latter.

The principle was that “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.”[5] In the appeal, this view was upheld by the House of Lords in 1868 however, the additional pre-requisite of non-natural, inappropriate or unusual use of land has to be proved.

To constitute strict liability the following essentials have to be fulfilled namely,

• To make the defendant strictly liable it is imperative that he was dealing with a dangerous substance, that is, any substance that causes harm or mischief if it escapes from the designated premises. For instance, toxic gases, explosives, electricity, etc.
• To make the defendant liable it is also significant that the substance escaped from the designated premises so as to be out of control or not within the reach of the defendant.
• And lastly, to constitute strict liability, the use of land should be non-natural or unusual however, if the use is natural like domestic, the defendant shall not be liable.

III. Absolute Liability: Evolution

Every industry is considered to be a social unit having certain rights and duties towards the public, to not harm the environment or the health of an individual. The enterprise holds a non-delegable duty absolute towards the community.

Justice Golden referred to absolute liability as “a liability without fault – a liability for which there is no excuse”.[6] Absolute liability is categorized as a tortuous liability. An enterprise that is engaged in the utility or production of hazardous substances owes a duty of care towards the public at large residing in that area and if someone is harmed the enterprise has an absolute liability without any exception or defence of negligence, Act of God, fault, mistake, etc. to seek exemption.

In India, the Absolute Liability principle is an indispensable part of Article 21 of the Indian Constitution and incorporated under Section 17 of the National Green Tribunal Act of 2010.[7]

To constitute absolute liability the following essentials have to be fulfilled namely,

• The element involved should be hazardous or ultra-hazardous because only when the element is threatening to one’s life or the environment, this principle is applied. For instance, toxic gas, explosives, vibrations are a few examples.
• Unlike the principle of strict liability, the escape of the hazardous element is not a pre-requisite to attract the principle of absolute liability.
• The principle of absolute liability provides for no defence and holds the establishment absolutely liable.
• It equally applies to both, natural and non-natural use of the premises.
• Lastly, the number of casualties or death does not determine the extent of compensation or the liability of the enterprise.

The 19th-century principle of strict liability was amended and modified to maximize the limits and the degree of rule of strict liability that was laid down in Ryland v. Fletcher[8]. The principle of strict liability was first recognized in the case of M.C. Mehta v. Union of India[9] wherein, in 1985 oleum gas leaked from the Shriram Foods and Fertilizers Industries situated in Delhi causing injuries to several and death of one.

The judges regarded the strict liability principle as obsolete and inadequate to guard the rights of the citizenry. The Apex Court articulated the Absolute liability principle and made the accountability of the enterprise compatible with its capacity.

The same principle was upheld in Charan Lal Sahu v. Union of India[10]. Justice Bhagwati observed that an establishment engaged in inherently hazardous or dangerous industry, that is threatening to not just the persons employed therein but also for the people residing in the vicinity has a non-delegable duty and an absolute duty of care towards the society and the environment to ensure that no harm is caused.

Thereafter, in the case of Union Carbide Corporation (UCC) v. Union of India[11] wherein the MIC leaked in Bhopal from a UCC unit; it resulted in the death of more than 3000 people, injured several others and even after thirty-six years of the unfortunate incident the effect can be seen in deformed fetuses and mental retardation of the consequent generations, after the incident.

This was an appropriate example for the judiciary to understand the magnitude of the threat that is posed to the environment and the human by the production of noxious chemicals. Herein, the Apex Court once again applied the principle of absolute liability as derived in M.C. Mehta.

Furthermore, to ensure prompt compensation, the parliament also enacted the Public Liability Insurance Act in 1991 which made it mandatory for the enterprises using or producing hazardous elements to undertake insurance to ensure speedy interim relief to the victims and their family.

Recently, on 7^th May, 2020, styrene gas leaked from the LG Polymers plant in Visakhapatnam, Andhra Pradesh. The incident was similar to that of the UCC in Bhopal with fortunately less casualties. The liability of the concerned plant should be absolute and non-defensive as all the essential elements to constitute absolute liability are fulfilled – the plant was dealing with and holding hazardous/dangerous substance, this substance leaked disastrously owing to the mismanagement on part of the management of LG Polymers and thereby causing harm to the environment and injury to the citizenry, further, making the establishment absolutely liable.

This liability doesn’t recognize any exemptions of defence and henceforth LG Polymers cannot be absolved of the same on the excuse of COVID 19, act of god, limited casualties, gas has no potential threat to health, etc. In addition to this, the gas is found to have tendencies of deforming fetuses, life-threatening, may cause Central Nervous System Depression and/or Cancer. Only the plant had the resources to guard against the dangers or hazards of the leakage or provide warning against the potential risk associated with the substance.

Absolute Liability v. Strict Liability

When one tries to draw a line of distinction between strict liability and absolute liability, the following are the things that are to be kept in mind.

a. while Strict liability takes into account exemptions if the resultant is accrued by an act of the third party, or act of God, etc whereas in case of Absolute liability, if the industry is engaged in dealing with hazardous material, there is no scope for any defences or excuses making the industry liable for the damage caused.[12]

b. under Strict liability the quantum of compensation is determined by the actual damage caused while in case of Absolute liability the quantum of damages depends on the magnitude and the financial capacity of the enterprise.[13]

c. in case of Absolute liability, it is not imperative that the dangerous or the hazardous element escapes the premises of the defendant to make him liable as is the case for Strict liability. That is to say that the absolute liability principle is applicable to both the persons injured inside or outside the enterprise.

d. while the principle of Strict liability is only ascribed to unusual or non-natural use of land and not natural use of it; the principle of Absolute liability applies to both, regardless of whether the use of land is natural or non-natural.

Conclusion

The Indian Court has declared in unequivocal terms that the principle of ‘Absolute Liability’ is well established and has become part of the tortuous law and the environmental jurisprudence, without any statutory mandate. The courts have been very responsive and innovative in this aspect. They have always rescued those who have suffered due to toxic chemicals and pollution, be it nature or man.

Mandating the polluters and emitters to oblige by compensating for the damages is equivalent to asking them to perform their constitutional obligation under Article 21 of the Constitution. Therefore, anyone who holds or carries out hazardous activities in his premises has an Absolute Liability under both civil and criminal law. Under civil law, they are required to pay compensation for the death of victims, for discomfort, recovery and the environmental damage (tortuous liability) and simultaneously under criminal law, they shall be punished under environmental statutes such as the Environmental Protection Act of 1986, etc. (criminal liability).

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[1] Sakshi Raje, Rules of Strict and Absolute Liability, 2018, Law Times Journal

[2] Indian Council for Enviro Legal Action v. Union of India, AIR 1996 SC 1446

[3] Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCR 241

[4] Ryland v. Fletcher, [1868] UKHL 1

[5] Sakshi Raje, Rules of Strict and Absolute Liability, 2018, Law Times Journal

[6] Hoy v. Miller, 2006 WY 147, 146 P.3d 488

[7] Bharat Parmar & Ayush Goyal, Absolute Liability: The Rule of Strict Liability in Indian Perspective, available here

[8] Ryland v. Fletcher, [1868] UKHL 1

[9] M.C. Mehta v. Union of India, AIR 1987 SC 965

[10] Charan Lal Sahu v. Union of India, AIR 1990 SC 1480

[11] Union Carbide Corporation (UCC) v. Union of India, AIR 1992 SC 248

[12] Bharat Parmar & Ayush Goyal, Absolute Liability: The Rule of Strict Liability in Indian Perspective, available here

[13] Sakshi Raje, Rules of Strict and Absolute Liability, 2018, Law Times Journal

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• Law of Torts; Notes, Case Laws And Study Material
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