Law Commission’s Consultation Paper on Manmade

Disasters

Submitted by Supervised by

Yash Kumar Dr. Sushila

National Law University

Delhi (India)

2013

DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the LL.B (Hons.) Project Report entitled

“Law Commission’s Consultation Paper on Manmade Disasters” submitted at

National Law University, Delhi is an outcome of my work carried out under the

supervision of Dr. Sushila. I have duly acknowledged all the sources from which

the ideas and extracts have been taken. The project is free from any plagiarism

issue.

Yash Kumar

National Law University, Delhi

20th November, 2013

Chapter – 1

Overview

1.1 Review of Literature

The literature on the topic of extent of torts related to man-made disasters is very limited. A very

limited amount of study has been done on the topic, which can also be seen by the shocking lack

of legislation in the area, and also weak case laws.

As shall be shown, the case for receiving compensation for man-made disasters in India is a

weak one. People who lose their loved ones, or suffer great injuries more often than not, do not

get adequate compensation. The Law Commission’s consultation paper on the topic is one of the

few accessible as well as reliable sources of data on the topic, which is a step towards greater

study and research into the field.

1.2 Statement of the problem

Every year, a large number of lives are lost due to the disasters caused by gross human neglect.

A large number of people sustain heavy injuries as well. Innocent people, time and time again,

lose their lives because of no fault of their own. To increase their problem, they are not even

adequately compensated for the injuries sustained, or their families do not get a share of

compensation for the lost lives of their loved ones.

It has been seen in the past that people or organizations who have caused harm to a very large

number of lives have gotten away scot-free due to weakness displayed by the judiciary as well as

legislation.

This paper aims to enquire about the reasons why there is such a bad state of people getting

their rightful compensation. Also, we shall try to find out what all is being done, as well as what

more can be done to tackle the problem effectively. We shall be taking a page from the past to

look at some relevant case laws which give us an insight into the grievous situation of the

victims of such disasters.

1.3 Conceptual Context

Tort Law is the segment of law in which the victim sues the defendant for compensation. This is

usually done because there is some fault of the defendant (except in cases of strict and absolute

liability).

We shall be looking at how tort law is applied to man-made disasters, which has been defined

above.

1.4 Methodology

The methodology followed in the project is doctrinal research.

1.5 Objectives

The objective of the project is to:

o To review the condition of compensation of victims of man-made disasters.

o To find out the problems associated with the handing out of adequate

compensation.

o To find out what is being done to change the current situation.

o To find out, through the help of case laws, the ground level situation.

1.6 Research Question

o What is the current situation of the victims in respect to getting adequate

compensation in case of man-made disasters?

o What are the major obstacles which stop the victims from getting their rightful

share?

o What are the various changes being brought in to help the current situation?

1.7 Significance of Study

The study undertaken is of great importance in the contemporary world as day by day, the

number of man-made disasters taking place is increasing day by day. The study will tell us about

the state of victims in the disasters, as well as tell us deeply about how the legal structure plays a

huge role in the delivering of justice.

Chapter – 2

Introduction

2.1 Definitions

The following are definitions of man-made disasters:

1. Human-made disaster is disaster resulting from man-made hazards as opposed to

natural disasters resulting from natural hazards. It means a disaster or emergency

situation that result in civilian population’s casualties; loss of property…Human-made

disaster involves an element of human intent, negligence, or error; or involving a

failure of a man-made system. It is also called as man-made disaster.1

2. Manmade disasters are also known as anthropogenic disasters and they as a result of

human intent, error or as a result of failed systems.2

3. Deliberate or negligent human actions directly and principally caused one or more

identifiable disastrous events. Also known as human-made disaster.3

As can be noticed from the 3 different definitions, what is common in all of them is the human

factor involved, and more often, human negligence.

1 http://definitions.uslegal.com/h/human-made-disaster%20/2 http://www.disasterium.com/3 http://thelawdictionary.org/man-made-disaster/

2.2 Negligence

Torts law extending to man-made disasters mainly comes under the ambit of human negligence.

Negligence is defined as – “omission to do something which a reasonable man, guided upon

those considerations which ordinarily regulate the conduct of human affairs, would do, or doing

something which a prudent and reasonable man would not do”.4 We can now say that negligence

is a crucial element in most man-made disasters. Primarily, in a suit filed under law of torts for

compensation under man-made disasters, ‘negligence’ is how the plaintiff proves the fault of the

defendant, and seeks compensation.

2.3 Strict and Absolute liability

Also, in cases of strict and absolute liability, even without there being human negligence, the

party is liable. This is because in these cases, since the defendant brings on his property, it

becomes his own liability for whatever damage that arises. Hence, he is held liable in case he

causes a man-made disaster. Compensation for man-made disasters under tort law can be sought

by victims even if there is no fault of the defendant. This was highlighted in the case of Bhopal

Gas tragedy.

Chapter -3

Man-made disasters

3.1 Causes of man-made disaster

The possible causes of manmade disasters are not exhaustive, but the few common causes are as

follows:

1. Fire outbreaks2. Unauthorized erection of temporary structures3. Permanent structures without proper safety measures4. Building collapses5. Stampedes6. Industrial Disasters7. Handling of toxic waste

We shall not be going into detail of each type of hazard, as it is not under the ambit of our study.

3.2Reasons for man-made disasters

4 http://www.encyclo.co.uk/define/negligence

However, it has been seen, that most of these types of disasters can be easily prevented if basic

steps are taken for the same.

3.2.1 Safety Precautions

A large number of disasters can be easily avoided if proper safety precautions are taken, and if

people are made aware of the dangers. Simple steps like incorporating fire exits in buildings, as

well as making sure working fire extinguishers are available to the people.

3.2.2 Lax in administration

It is often seen that various government authorities who are in charge of giving permission for

commission of various projects are often lax, and do not adhere to various guidelines. Due to

lack of supervisory authority and vigilance, amongst the authorities as well as the common man,

these safety provisions are shamelessly flouted. Also, people lack a mechanism to effectively

report flouting of provision, and even if reported, effective action is rarely taken. Hence,

mechanisms should be put in place to make sure that these complaints and tip-offs are taken

seriously, as they can harm the community at large, in cases of large outbreaks of fire etc.

3.2.3 Unawareness among people

A major problem is that even the wrong doers are unaware of the risk they are undertaking while

undertaking a dangerous act; they simply do not know that it is dangerous. Lack of awareness

and education is a major contributor to the problem. People at every level of life need to be

educated to be able to handle situations where a disaster may arise. Also, risks in doing certain

activities can be told to them to deter them from doing the same. Print media, as well as

television can be used to reach the masses. Also, students in schools and colleges can be made

aware through efforts from various public organizations. Adults, through community based

efforts in colonies, as well as offices, can be educated about the same.

3.2.4 Deterrent

It has also been seen that even if the government is filling all the requisites, the people over try

and circumvent such provisions. One of the major reasons of this is because punishment is not a

deterrent in such scenarios is due to the lack of harsh punishment. The lack of fear of punishment

in people’s mind allows them to carry on a wrongful act without second thought. The legislation

should realize that due to some people taking half-measures in safety, and in cases, no measures,

these end up causing a great damage to life and property, and that they should come down hard

on those not complying. Also, there needs to be punishment for authorities not carrying out their

jobs up to the required standard. Complaints often go unintended, and wrong-doers are let go

scot-free. It is seen that often, in cases where the legislation on a subject is strong, the

administration and execution fall behind. On the other hand, even if the execution is strong, weak

legislation takes away the claws of the authorities. Both, the legislation, as well as the

administration needs to work hand in hand to tackle this serious problem.

Chapter – 4

Legislation in India

4.1 Disaster Management Act, 2005

There have been various legislations which partly deal with the subject of man-made disasters.

The legislation which is most relevant, and deals most directly with the subject is The Disaster

Management Act, 2005.

4.1.1 Purpose of the Act

Aim of the act is to promote and ensure disaster response readiness. The Act aims at preventing

disasters in the future by putting in place checks, and aims to mitigate the effect that disasters

have on human life. It aims at helping coordinate response efforts for when disasters occur. The

Act has a tried to put in a institutional mechanism to monitor the efforts to monitor disaster

management plans.

4.1.2 Disaster Management Authority

The Disaster Management Act, 2005 provides for setting up of a National Disaster Management

Authority (NDMA), whose ex officio chairman is always the Prime Minister of India. Similarly,

the State Disaster Management Authority is headed by the respective Chief Ministers of the State

and the District Disaster Management Authority is headed by the District Magistrate. The said

authorities have already been put in place.

4.1.3 Disaster Response Force

The law has tried to improve the readiness for disasters, as the legislation entails the setting up of

a National Disaster Response Force, which constitutes a man force ready to provide disaster

relief efforts. These men are sent to wherever there is a calamity, and provide much needed

assistance. They are trained to provide first aid, and various other kinds of help to the victims.

4.1.4 National Institute of Disaster Management

The Act has also tried to propagate education about the subject, and to assemble a sound and

knowledgeable work force to effectively manage disasters, the Act provides for the

establishment of National Institute of Disaster Management. It has been set up in New Delhi, and

was established in 1995.

4.1.5 Disaster Relief Funds

It has often been seen in the past, when disaster has struck, that a lack of availability of funds has

seriously hampered the relief efforts, and people have to suffer. Disaster Relief Funds have been

created to tackle the same. The Central Government makes large amounts of contributions to the

fund to help tackle the problem. Some states have taken a step further and passed their own State

Disaster Management Acts, to help further their interests of providing safety to the people. Even

though these Acts are primarily enacted to protect people against natural calamities, the word

‘disaster’ is wide enough to cover natural disasters in its ambit.

4.2 Environment Protection) Act, 1996

The Environment (Protection) Act was enacted in 1996, in the aftermath of the Bhopal gas

tragedy, where a large amount of loss to life and environment was suffered. It was enacted to

ensure that industrial activities do not get the better of the environment. Also, it was brought into

to curb the large amounts of pollution caused by various industries, which often pollute the

environment and do not take measures to even mitigate the effects. The amounts which can be

emitted or discharged into the environment have been laid down in the Hazardous Wastes

(Management Handling) Rules, 1989, and Hazardous Chemicals Rules, 1989. The industries are

expected to comply with the standards prescribed, and not discharge affluent in excess to the

limits.

4.3 Public Liability Insurance Act 1991

In many instances in history, it was noticed that workers working in dangerous circumstances,

with hazardous substances, when suffering injury, were not compensated at all. They were left

alone, and those who pressed for compensation were even fired. To tackle this, in 1991, the

legislation passed the Public Liability Insurance Act 1991. This act aimed to impose a liability

on the owners, who in previous instances, got away scot free. They were forced to mandatorily

take up insurance, which would come in need when the need to provide compensation to victims

arose.

4.4 Indian Penal Code

“Provisions of Indian Penal Code viz. Section 304-A (causing death by rash or negligent act),

Section 304

(Culpable homicide not amounting to murder), the offences under Chapter-XIV concerning

negligent conduct with respect to poisonous and explosive substances, fire or combustible

material”5

Chapter -5

5Law Commission of India, Consultation Paper on Manmade Disasters, Jul 20, 2012, Page 6

lawcommissionofindia.nic.in/reports/manmadedisaster.pdf

Remedy

5.1 Introduction

In the present situation for remedy under tort law for victims of man-made disasters is that

victims and as well as their legal representatives of a deceased victim can claim compensation.

Various legislations provide compensations after framing up of an appropriate amount, given the

circumstances and given the situation of the wrong doer, and degree of fault and liability.

However, receiving this compensation does not bar the victims, as well as the representatives of

the deceased victim, to pursue more compensation as private remedy under common law.

5.2 State as wrong doer

If the State is the wrong doer, which in turn violates Art.21, being the right to life, the victims, or

the representatives of a deceased victim can claim compensation from the public/statutory

authority too under Public Law remedy.

5.3 Relief under tort law

5.3.1 Definition of Tort

“Tort is a body of rights, obligations, and remedies that is applied by courts in civil proceedings

to provide relief for persons who have suffered harm from the wrongful acts of others. The

person who sustains injury or suffers pecuniary damage as the result of tortuous conduct is

known as the plaintiff, and the person who is responsible for inflicting the injury and incurs

liability for the damage is known as the defendant or tortfeasor.”6

5.3.2 Requirements for successful tort action

3 elements are required to be established in a successful tort action –

1. There was a legal duty of care

2. There was breach of the duty of care

3. Injury was suffered because of the duty of care

6 http://legal-dictionary.thefreedictionary.com/Tort+Law

Actions under tort law for man-made disasters come under the head of Negligence. Since most

causes of the man-made disasters fulfill these requirements, they are made to compensate the

victims.

“Negligence is conduct that falls below the standards of behavior established by law for the

protection of others against unreasonable risk of harm. A person has acted negligently if he or

she has departed from the conduct expected of a reasonably prudent person acting under similar

circumstances.

In order to establish negligence as a Cause of Action under the law of torts, a plaintiff must

prove that the defendant had a duty to the plaintiff, the defendant breached that duty by failing to

conform to the required standard of conduct, the defendant's negligent conduct was the cause of

the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged.”7

In the famous case of Donoghue v Stevenson, the famous neighbor principle was given clarity by

Lord Atkin. In the famously quoted words, he said -

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee

would be likely to injure your neighbor. Who, then, in law, is my neighbor? The answer seems to

be persons who are so closely and directly affected by my act that I ought reasonably to have

them in contemplation as being affected when I am directing my mind to the acts or omissions

which are called in question."8

Now, it has been established that people owe a duty of care to their neighbor. If people happen to

breach the said duty of care, they can be held liable for compensation in a competent court of

law. The same principle applies to victims of man-made disasters who seek compensation under

tort law. Hence, if the man-made disaster has taken place due to negligence, victims can

successfully sue the wrong doers.

This concept however has not fully evolved in India, and successful tort actions which have

adequate compensation are rare. People often get very few amount of compensation which

doesn’t cover the damages suffered, or sometimes no compensation at all.

7 http://legal-dictionary.thefreedictionary.com/Negligence8 Donoghue v Stevenson , [1932] UKHL 100

Hence, remedy under tort law is available but, it has often been seen that the compensation

provided is not adequate. This can be highlighted by the case of the Bhopal Gas Tragedy.

Case study: Bhopal gas tragedy

The Bhopal Gas Tragedy, 1984 was a catastrophe that had no parallel in the world’s industrial

history. In the early morning hours of December 3, 1984, a rolling wind carried a poisonous gray

cloud from the Union Carbide Plant in Bhopal, Madhya Pradesh (India). Forty tons of toxic gas

(Methy-Iso-Cyanate, MIC) was accidentally released from Union Carbide’s Bhopal plant, which

leaked and spread throughout the city. The result was a nightmare that still has no end, residents

awoke to clouds of suffocating gas and began running desperately through the dark streets,

victims arrived at hospitals; breathless and blind. The lungs, brain, eyes, muscles as well as

gastro-intestinal, neurological, reproductive and immune systems of those who survived were

severely affected. When the sun rose the next morning, the magnitude of devastation was clear.

Dead bodies of humans and animals blocked the street, leaves turned black and a smell of

burning chili peppers lingered in the air. An estimated 10,000 or more people died.  About

500,000 more people suffered agonizing injuries with disastrous effects of the massive

poisoning.9

Following the accident, GoI filed for a compensation law suit against the UCC for an

estimated US$3billion. However, the UCC felt that the GoI was to blame for the disaster. In

December 1986, UCC filed a countersuit against the GoI and the State of Madhya Pradesh. The

company charged the governments with “contributory” responsibility for the leak of poisonous

gases, saying both the governments knew of the toxicity of the MIC but failed to take adequate

precautions to prevent a disaster.

UCC tried to defend its position by saying that it only had a 50.9% stake in UCIL. The company

also said that all the employees in the company were Indians and that “the last American

employee at the site had left two years before”. UCC maintained that it did not have any hold

over its Indian affiliate.UCC further argued that day-to-do working of UCIL was independent of

the parent company. However investigations revealed that this was not really true. In spire of

denials, it appeared that UCC had substantial authority over its affiliate.

9 http://www.bmhrc.org/Bhopal%20Gas%20Tragedy.htm

Within months after the disaster, the GoI issued an ordinance appointing itself as the

solve representative of the victims for any legal dealings with the UCC as regards compensation.

The ordinance was later replaced by the Bhopal Gas Leak (Processing of Claims) Act, 1985.

Armed with this power, the GoI filed its suit for compensation and damages against UCC in the

United States for the Southern District if New York. Besides filing the suit, one of its prime

responsibilities was to register the claims of each and every gas victim in Bhopal.

In May 1986, Judge J.F.Keenan ruled that India and not the US was the appropriate

forum for the Bhopal compensation litigation. In the first pre-trial hearing in the consolidated

Bhopal litigation in US federal courts , John F Keenan, asked UCC as ‘matter of fundamental

human decency’ to provide interim relief payment $5-10million. UCC paid $5 million.10

After a long drawn out trial which was contested first in the trial court, then in the High Court

of Madhya Pradesh, finally the Supreme Court ordered UCC to pay $470 million in “full and

final settlement”.

This worked out to be just a mere Rs. 10000 per victim. It was a mere consolation prize since

there was unimaginable loss of life and health. This shows the absolute weakness in delivery of

justice, as well as legislation in India.

Bibliography

1. http://www.bmhrc.org/Bhopal%20Gas%20Tragedy.htm

10 http://www.econ.upf.edu/~lemenestrel/IMG/pdf/bhopal_gas_tragedy_dutta.pdf

2. http://www.econ.upf.edu/~lemenestrel/IMG/pdf/bhopal_gas_tragedy_dutta.pdf

3. Law Commission of India, Consultation Paper on Manmade Disasters, Jul 20, 2012

4. http://www.indiatogether.org/relief/

5. http://www.cpconline.in/downloads/PRIMER%20ON%20DISASTER

%20MANAGEMENT.pdf

6. http://articles.timesofindia.indiatimes.com/2012-08-08/ahmedabad/33099536_1_disaster-

victims-gujarat-govt-natural-calamity

7. http://www.indianexpress.com/news/haryana-govt-increases-compensation-for-disaster-

victims/1021478/

8. http://www.expertlaw.com/library/personal_injury/negligence.html

9. http://fds.oup.com/www.oup.com/pdf/13/9780199289714.pdf