WHAT IS ABSOLUTE LIABILITY:
Absolute liability is a tortuous element. This principle upholds the duty of care owed to the public by enterprises that produce or use hazardous substances. Any establishment that is occupied with production and use of harmful substances must ensure that no harm is done to the residents of that area. If anyone is harmed then the establishment is absolutely liable and no defence or exception can relieve them from such liability. Defence such as negligence, fault, act of God, mistake or any other cannot be applied to seek exemption from the liability.
Rapid and unprecedented industrial development has brought in its wake the duties and rights of the enterprises towards the public. They have an absolute non delegable duty to the community. Justice Golden in the case Hoy V. Miller defined absolute liability as “absolute liability is a liability without fault – a liability for which there is no excuse”.
In India, the principle of Absolute Liability is an inalienable part of Article 21 of the Indian Constitution and NGT Act 2010 under section 17, incorporated the no-fault law.
EVOLUTION OF THIS CONCEPT:
As the rule of strict liability was laid down in the case of Ryland V. Fletcher, the Indian Judiciary decided to amend and modify the 19th century principle. The principle of absolute liability was primarily formulated in M. C. Mehta v. Union Of India 1986and was later developed in the Bhopal gas Tragedy.
M. C. Mehta v. Union of India;
In the year 1985, Oleum Gas leaked from Shriram Foods and Fertilizers Industries, Delhi, killing one and injuring several. The judges refused to apply the principle of Strict Liability and rendered it obsolete because it is ‘woefully inadequate’ to protect the rights of the citizens. Thus an innovative remedy was evolved by the Supreme Court, which was indirect recognition of the ‘polluter pays principle’. Absolute liability was thus articulated. The Court also made the measure of accountability compatible with the capacity of the enterprise.
Justice P. N. Bhagwati meticulously observed; “We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of the hazardous or inherently dangerous nature of the activity which it has undertaken.”
Union Carbide Corporation (UCC) v. Union of India / Bhopal Gas Tragedy;
In 1984, before the leak in Delhi, Methyl Isocyanate or MIC leaked from the UCC Unit in Bhopal. Over three thousand people lost their lives, and even after 36 years, the effects of the leak can be seen in deformed foetuses and retardation in the mental capacity of the victim residents. The Bhopal tragedy has amplified Indian and world perception of the threat to human health and the environment posed by the production of noxious chemicals. The judgment and principle derived from Oleum Case were applied and upheld in the case of Bhopal.
In furtherance to the principle, the Indian Legislature also passed the Public Liability Insurance Act, 1991, to ensure speedy compensation. The Act makes it mandatory for enterprises manufacturing hazardous elements to take insurance under this Act so that it’s easier to give interim relief to the victims.
PRE-REQUISITES OF ABSOLUTE LIABILITY:
- Hazardous element: Only when the element dangerous to one’s health and the environment is putting lives at risk, this principle can be applied. Elements like toxic gas, vibrations, explosives, etc. are examples of hazardous element.
- Escape of element not necessary: Unlike strict liability the escape of element is not required. The rule will apply to those injured within and outside the premise where the incident occurred.
- Natural and Non-Natural use of land: Unlike strict liability, this principle applies to cases emerging out of the use of non-natural use of land as well as the natural use.
- No defence: No kind of exception can be given in cases that fall under the purview of absolute liability. The enterprises will be absolutely liable.
- Relevancy of the number of deaths: For asserting the extent of liability and compensation to be paid, the number of deaths is irrelevant.
The recent case of VIZAG GAS LEAK:
On May 7, styrene gas leaked from a chemical plant owned by the South Korean company LG Polymers India Pvt. Ltd in Gopalapatnam, Vizag. The leaked gas killed 11 people and sickened over a 1,000, and also affected many flora and fauna in the area. Once the incident was widely reported in the media, the National Green Tribunal (NGT) took suo motu cognisance of the matter: it formed a committee under a retired judge of the Andhra Pradesh high court to inspect the site and determine the cause of the incident, the damage caused to life, environment and health, and steps to compensate victims. In its order, the NGT directed the application of a strict liability principle for damage to the people and environment. This is a problem. That styrene gas is hazardous, it has caused loss of human lives and damaged the environment, and it could cause potential long-term health effects – the tribunal has chosen to invoke the principle of strict liability when it should have invoked the principle of absolute liability. The principle of Absolute Liability does not recognize defence and exemptions, and therefore, one cannot be absolved off their liabilities. LG Polymers took the defence of Covid19 or the spread of Corona Virus as an Act of God for their mistake and inability to manage the plant. Furthering which, they claimed that the plant was closed for 40 days due to the lockdown. They have taken several defences like, the number of deaths is not large, and that the gas has no potential effects on health. The Apex Court in its judicial pronouncements made it clear that the compensation or liability will be adjudged on the capacity of the firm or factory, so it acts as a deterrent for such accidents from happening again. In lieu of the same, the Andhra Pradesh Government announced Rs 1 crore compensation to the family of the deceased, Rs 10 lakhs to the ones under treatment and Rs 1 lakh for the hospitalized. However, these are separate from final liability. The NGT also announced an interim compensation of Rs 50 crore.
India has had a history of lethal gas leaks leading to a permanent disability of the future generations. The same may not be expected of the Vizag Gas Leak because Styrene gas is said to have the properties of the potential threat. However, the tort laws in India weren’t modified ad developed much which made us follow the English common law, but the Oleum case helped the judiciary modify the same. With this development the Indian judiciary has seen a revolutionary transformation in tortuous laws.
Anyone who carries hazardous elements holds an absolute liability and are required to pay compensation for the death, discomfort or environmental damage. They are also criminally liable under Environmental Protection Act, 1986.
AUTHOR: PEARL SHARMA