Act of God and Inevitable Accident in Tort | Law Notes
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INTRODUCTION
The Law of Tort is a concept that has been evolving through the ages. This ever dynamic evolution of tort law has been the mater to many principles under which tortuous liability can be demanded.
Simultaneously, certain other principles are used, to counter these
claims for compensation. These counter claims, or defences are used to
evict those innocent citizens from tortious liability who have been
unfairly implicated with claims imposed on them. These defenses were
formulated from time to time to keep up with the very basis of
imposition of tortious liability on an individual- i.e, creating a sense
of deterrence while keeping up with the basic values of justice.
Defenses to tort are many: namely, Necessity, Vis Major/Force
Majeure/Act of God, Inevitable accident, Plaintiff's wrongdoing, Act of
third party, Volenti non fit injuria and many more. Bringing two of
these defences namely, Vis Major/Force Majeure and Inevitable Accident in the ambit of speculation this article examines its evolution and present scope.
MEANINGS AND DEFINITIONS
An inevitable accident or "unavoidable accident"
is that which could not be possibly prevented by the exercise of
ordinary care, caution and skill. It does not apply to anything which
either party might have avoided. Inevitable accident was defined by Sir
Frederick Pollock as an accident
"not avoidable by any such precautions as a reasonable man, doing such an act then there, could be expected to take."
It
does not mean a catastrophe which could not have been avoided by any
precaution whatever, but such as could not have been avoided by a
reasonable man at the moment at which it occurred, and it is common
knowledge that a reasonable man is not credited by the law with
perfection of judgment. As observed by Greene M.R., an accident is"one out of the ordinary course of things, something so unusual as not to be looked for by a person of ordinary prudence." All causes of inevitable accident may be divided into 2 classes[1]:
- Those which are occasioned by the elementary forces of nature unconnected with the agency of man or other cause
- Those which have their origin either in the whole or in part in the agency of man, whether in acts of commission or omission, nonfeasance, or in any other causes independent of the agency of natural forces. The term "Act of God" is applicable to the former class.
An accident is said to be ‘inevitable' not merely when caused by Vis major or the act of God
but also when all precautions reasonably to be required have been
taken, and the accident has occurred notwithstanding. That there is no
liability in such a case seems only one aspect of the proposition that
liability must be based on fault. Act of God or Vis Major or Force Majeure
may be defined as circumstances which no human foresight can provide
against any of which human prudence is not bound to recognize the
possibility, and which when they do occur, therefore are calamities that
do not involve the obligation of paying for the consequences that
result from them.[2] Vis Major includes those consequences
which are occasioned by elementary force of nature unconnected with the
agency of man. Common examples are falling of a tree, a flash of
lightening, a tornado or a flood. The essential conditions of this
defence are:
- The event causing damage was the result of natural forces without any intervention from human agency.
- The event was such that the possibility of such an event could not be recognized by using reasonable care and foresight[3].
The American Jurisprudence defines act of God as:
An
event may be considered an act of God when it is occasioned
exclusively by the violence of nature. While courts have articulated
varying definitions of an act of God, the crux of the definition
typically is an act of nature that is the sole proximate cause of the
event for which liability is sought to be disclaimed[4].
Act of
God as a defence arises only where escape is caused through natural
causes without human intervention, in circumstances which no human
foresight can provide against and of which human prudence is not bound
to recognize the possibility[5].
ORIGIN AND HISTORICAL EVOLUTION OF THE DEFENCES
INEVITABLE ACCIDENT
In
the pre nineteenth century cases, the defence of inevitable accident
used to be essentially relevant in actions for trespass when the old
rule was that even a faultless trespassery contact was actionable,
unless the defendant could show that the accident was inevitable. It was
for long thought that the burden of proof in trespass upon the person
rested with the defendant and that trespass, therefore, offered scope to
the defence of inevitable accident, but it has now been held that here
too the burden is with the claimant[6]. In trespass as well as in
negligence, therefore, inevitable accident has no place. In these cases
inevitable accident is irrelevant because the burden is on the claimant
to establish the defendant's negligence, but it does not follow that
that it is any more relevant if the claimant has no such burden. The
emerging conception of inevitability can be seen most clearly in Whitelock v. Wherwell[7], the bolting horse case from 1398. The complaint in Whitelock
was unusual because the plaintiff, rather than just reciting that the
defendant had hit him with force and arms, also alleged that the
defendant had "controlled the horse so negligently and improvidently"
that it knocked him down. The defendant conceded that the horse had
knocked down the plaintiff, but pleaded that the plaintiff's fall was
"against the will" of the defendant. The defendant went on to explain
that he had hired the horse without notice of its bad habits, that it
ran away with him as soon as he mounted it, and that he "could in no way
stop the horse" although he "used all his strength and power to
control" it. It was a plea of inevitable accident in a case of latent
defect (the horse is a "bolter"). The collision may have been
inevitable, but it had become inevitable by virtue of the defendant's
negligence, and was thus not held to be an accident.
The first explicit statement that a defendant can escape liability in trespass if the accident was inevitable occurs in Weaver v. Ward
[8], decided in 1616. The category "inevitable accident" was
understood, in its inception as distinguished from the defence of
"accident," or "mischance," which was available in felony but not in
trespass, and which was a true no-negligence defence. The defendant in Weaver
inadvertently shot the plaintiff when his musket discharged while their
company of soldiers was skirmishing with another band. The defendant
pleaded that he "accidentally and by misfortune and against his will, in
discharging his musket, injured and wounded the plaintiff; which
wounding is the same trespass of which the plaintiff complains."
Substantively, this was a plea of accident. The plaintiff demurred, and
the court held the defendant's plea bad. In trespass, the plaintiff
needed only to allege that the defendant had done harm with force and
arms, rather than done harm negligently. In actions on the case,
however, allegations of negligence seem always to have been
necessary[9].
In property damage cases involving heavy weather,
where there was typically a presumption of fault against the moving
vessel, and the vessel owner's efforts to rebut liability take the
inevitable accident form. The inevitable accident defence was typically
invoked when a vessel, caught in the full force of a storm, has been
driven against another vessel or vessels, or against a fixed
structure[10]. Property damage cases also involved destruction by fire.
In Tucker v. Smith[11] (1359), the defendant said
simply that his house "caught fire by mischance and was burned down so
that the fire there from being blown by the wind to [plaintiff's] house"
burned it "by mischance." It can be quite as impractical to stop an
ordinary wind from spreading fire as a tempest. The plaintiff therefore
elected to join issue on how the fire started rather than how it spread.
His special traverse claimed that the defendants burned the house "of
their own wrong and by their fault" and denied that it "was burned down
by mischance."
In Ellis v. Angwyn[12] (1390),
the defendant pleaded that unknown to him and "against his will, a fire
suddenly arose by mischance" in his house, and was spread by "a great
gust of wind" to the plaintiff's houses. The plea says nothing about
what the defendant did to prevent the fire from arising or spreading.
The act of God was thus incorporated (though not by that name) in a plea
of accident to show that the harm was inevitable.The last
pre-nineteenth century case that directly deals with how inevitable
accident should be pleaded is Gibbons v. Pepper[13].
The defendant pleaded that his horse became frightened and "ran away
with him so that he could not stop the horse," that the plaintiff
ignored his warning "to take care," and that the horse thus ran over the
plaintiff "against the will of the defendant." In substance, this was a
plea of inevitable accident. Gibbons thus holds that
inevitable accident should be raised by pleading the general issue when
the substantive nature of the plea amounts to a complete denial of
causal responsibility. The Gibbons court put the "runaway horse" on a par with the hypothetical case of A using B's hand to strike C, and treated both as denials.
In Mitchell v. Allestry[14]
(1676), the plaintiff was run over by two untamed horses the defendants
were breaking in a public square. The plaintiff initially brought an
action claiming that the defendants "did negligently permit" the horses
to run over her. But at the first trial "the evidence as to the
negligence" went against the plaintiff, and she was non-suited. She then
brought a second suit, in which, as counsel for the defendant said, her
"own declaration excused" the defendants of that "negligence,"
because it said "that on account of their ferocity they could not
govern them, but that they did run upon her." The first suit failed
because the evidence-given that the plaintiff did not challenge the
defendants' antecedent decision to break horses in a public
square-showed that the harm was both accidental and inevitable. The
court (Hale, C.B.) pointed out, however, that the plaintiff could sue
again on a different theory. This accordingly illustrates the way in
which some decisions about precautions were governed only by accident,
while others were also governed by inevitability. In the Nitro Glycerine[15]
case, the defendants, a firm of carriers, received a wooden case to be
carried to its destination and its contents were not communicated. It
was found that the contents were leaking. The case was taken to the
defendants' office, which they had rented from the plaintiff and the
defendants proceeded to open the case for examination but the nitro
glycerine which was present had already exploded. All present were
killed and the building was badly damaged. The defendants were held not
liable "in the absence of reasonable ground of suspicion, the contents of the package offered them for carriage" and that, they were "without such knowledge in fact and without negligence."
In the case of Holmes v. Mather[16],
the defendant's horses while being driven by his servant on a public
highway ran away from a barking dog and became unmanageable that the
servant could not stop them, but could, to some extent guide them. While
trying to turn a corner safely, they knocked down and injured the
plaintiff on the highway. It was held that the action was not
maintainable since the servant had done his best under the
circumstances. In the case of Fardon v. Harcourt-Rivington[17] the
defendant parked his saloon motor car in a street and left his dog
inside. The dog has always been quiet and docile. As the plaintiff was
walking past the car, the dog started jumping about in the car, smashed a
glass panel, and a splinter entered into the plaintiff's left eye which
had to be removed. Sir Frederick Pollock said: "People must guard against reasonable probabilities but they are not bound to guard against fantastic possibilities[18]" In the absence of negligence, the plaintiff could not recover damages. In the case of Brown v. Kendal[19],
the plaintiff's and defendants dogs were fighting. The defendant was
hitting the dogs to stop them from fighting while the plaintiff was
standing at a distance watching them. Accidentally, the stick hit and
hurt the plaintiff's eye. In an action for damages it was held that the
defendant would not be liable since the damage was the result of a pure
accident and not the negligence of the defendant.
The use of
inevitable accident in early actions interpreted inevitability as
impracticality. In the present scenario, to speak of inevitable accident
as a defence, therefore, is to say that there are cases in which the
defendant will escape liability if he succeeds in proving that the
accident occurred despite the use of reasonable care on his part, but is
also to say that there are cases in which the burden of proving this is
placed upon him. In an ordinary action for negligence, for example, it
is for the claimant to prove the defendant's lack of care, not for the
defendant to disprove it, and the defence of inevitable accident is
accordingly irrelevant and it is equally irrelevant in any other class
of case in which the burden of proving the defendant's negligence is
imposed upon the claimant. Nor is the position different in a case of res ipsa loquitor, for that merely raises a prima facie case[20].
STRICT LIABILITY - Rule in Rylands v. Fletcher
The
doctrine of strict liability has been widely extended to activities
considered abnormally dangerous or ultra hazardous. We essentially adopt
Rylands v. Fletcher[21] in imposing liability for
ultra hazardous activities. Such activities necessarily involve a risk
of serious harm to others, cannot be eliminated by the exercise of
utmost care, and are not a matter of common usage. In theory, strict
liability does not depend upon such factors as intent, recklessness,
knowledge, negligence, moral blameworthiness, or any other degree of
culpability. Nor does it depend upon the degree of care that defendant
exercised or failed to exercise. Rather, liability is based simply upon
the risks involved. The judgment of Lord Blackburn, approved by the House of Lords in the famous case of Rylands v. Fletcher[22] itself recognized that liability was not absolute being subject to certain exceptions. Lord Blackburn casually stated:
"[Defendant]
can excuse himself by showing that the escape was owing to the
plaintiff's default; or perhaps that the escape was the consequence of
vis major, or the act of God."
Hence, he made it a part of the
rule. If an animal has caused some kind of harm, and the aggrieved party
seeks to sue the keeper of that animal for compensation for that harm,
it seems that the fact that the animal acted the way it did because of
the malicious act of the stranger or an Act of God will afford no
defence to the plaintiff's claim. Consequently, the potential liability
of the keeper of a dangerous animal is wider than the potential of the
keeper of an inanimate dangerous thing[23]. Inevitable accident in any form is no defence in strict liability. As in Rylands v. Fletcher,
the defendant is liable notwithstanding that he has taken reasonable
care, it can avail him nothing to prove inevitable accident and the same
is true in those cases where the liability for nuisance is strict[24].
It therefore seems that the conception of inevitable accident has no
longer ay useful function and it is doubtful whether much advantage is
gained by the continued use of the phrase, which anyway seems to have
dropped out of use. Further, inevitable accident in any form is no
defence to a claim based on the rule of strict liability as laid down in
M C Mehta v. Union of India[25], which is not subjected to any exception.
VIS MAJOR
Act
of God, which is defined to be such a direct, violent, sudden and
irresistible act of nature as could not by any amount of ability , have
been foreseen or if foreseen, could not by any amount of care and skill
have been resisted[26]. Since time immemorial, we have been witnessing a
parade of natural calamities of seemingly biblical proportions:
earthquakes, floods, hurricanes, tornadoes, wildfires, drought and a
deadly tsunami. Lives are lost, properties destroyed or damaged, and
emotions shattered when these forces of nature tragically strike. The
severity of nature's blow may come as a total shock and surprise both to
the direct victims of the disaster and, subsequently, to the accused
tort feasors. What follows this is a myriad rush of litigations,
especially in heavily litigated countries like the United States of
America. Defendants are quick to claim act of God as a defence to
these lawsuits.For three centuries, the act of God defence has been
accepted in negligence and strict liability cases. As a legal concept,
act of God shows up not only as a defence, but also in discussions of
duty and causation. At first glance, the act of God defence seems a
simple, straight-forward concept with few nuances or intricacies.
Consequently, all too often, many attorneys have misused the phrase "act
of God" to mean any unfortunate act of nature. Vis Major to afford a
defence, must be the proximate cause, the causa causans, and not merely the causa sine quo non of the damage complained of[27]. The mere fact that Vis major
co existed with or followed on the negligence to accelerate the damage
caused is no adequate defence. Before an act of God may be admitted as
an excuse, the defendant must himself have done all he is bound to do.
In a sixteenth century opinion, in the Shelly's Case best known for the famous property law doctrine of the rule in Shelley's Case[28],
the court wrote in terms of performance becoming impossible by an act
of God, which was the death of one of the parties. The court stated:
"It would be unreasonable that those things which are inevitable by
the Act of God, which no industry can avoid, nor policy prevent should
be construed to the prejudice of any person in whom there was no
laches".
No further explanation of the phrase, ‘Act of God', was provided by the court. The phrase reappeared in the 1702 case of Coggs v. Bernard[29], which invoked liability for a bailment by a common carrier. Justice Powell opined that a bailee shall answer accidents,
as if the goods were stolen; but not such accidents and casualties as
happen by the act of God, as fire, tempest for the bailee is not bound,
upon any undertaking against the act of God.The act of God defence
expanded from common carriers into other areas of strict liability. The
Courts then extended the act of God defence to cases of negligence. The
act of God defence received prominence in decisions construing the
common-law liability of common carriers who were treated as insurers of
the goods they carried. Since strict liability applied to insurers, the
act of God defence existed to ameliorate an otherwise potentially
draconian liability. In the case of Morse v. Slue[30], Judge Hale stated that the master is not chargeable in the case of pirates, storms, and the like, "but where there is any negligence in him he is." Morse involved a ship lying in the Thames which was boarded by robbers who took the plaintiff's goods from the vessel.
In 1785, Lord Mansfield delivered a unanimous opinion in Forwardv. Pittard[31],
which involved an accidental fire for which the carrier was in no way
at fault. The court clearly established a rule of strict liability for
common carriers: It appears from all the cases for 100 years back, that
there are events for which the carrier is liable independent of his
contract. Again, in Forward, the English courts limited the act of God
defence by excluding acts of man. In addition, the burden of proof was
shifted from the plaintiff to the defendant to establish the existence
of the act of God defence. Although the courts subsequently split on the
liability issue for common carriers whose delay subjected its freight
to damage from an act of God, there was a consensus that liability would
result if the common carriers knew that the force of nature was
coming.In the 1875 case of Nichols v. Marsland[32],
the defendant had a series of artificial lakes on his land in the
construction and maintenance of which there had been no negligence.
Owing to unusual rainfall, so great that it could not have been
reasonably anticipated, the reservoirs burst carrying away four country
bridges. The court of appeals held that an act of God is a defence in
cases of reservoir failures.In the subsequent case of Smith v. Fletcher,
Baron Bramwell followed the strict liability holding of Rylands, but
dismissed the act of God defence even though the flood was
extraordinary, and they could not foresee it on the grounds that it did
not affect their legal responsibility.Greenock Corp. v. Caledonian Railway Co.[33], contrasts with Nichols. The House of Lords cirticised the application of the defence in Nichols v. Marshland,
and four of their lordships cast doubt on the finding of facts by the
jury in that case In this case, the Corporation obstructed and altered
the course of a stream by constructing a padding pool for children. Due
to rainfall of extraordinary violence which would normally have been
carried away by the stream overflowed and caused damage to the
plaintiff's property. It was held that rainfall was not an Act of God.
The House of Lords followed Rylands in holding that a person
making an operation for collecting and damming up the water of a stream
must so work as to make proprietors or occupants on a lower level as
secure against injury as they would have been had nature not been
interfered with. Nichols was further distinguished on two bases: the
escape in Nichols was from a reservoir rather than a natural stream, and a jury in Nichols
found the flood was due to an act of God. There had been ‘no negligence
in the construction or maintenance of the reservoirs," and "the flood
was so great that it could not reasonably have been anticipated'.
Smilar to Greenock Corp. is Nitro-Phosphate & Odam's Chemical Monroe Co. v. London & St. Katherine Docks Co.[34],
where an extraordinarily high tide may well have constituted an act of
God, but the defendant was still negligent because it built a dock
insufficiently high. As stated by Lord Justice James in Nugent v. Smith[35], the accident must be due to natural causes, directly and exclusively, and that it ‘could not have been prevented by any amount of foresight and pains and care reasonably to be expected from him'.
In the case of Blyth v. Birmingham Water Works Co[36]
the defendants had constructed water pipes which were reasonably strong
enough to withstand severe frost. There was an extraordinarily severe
frost that year causing the pipes to burst resulting in severe damage to
the plaintiff's property. It was held that though frost is a natural
phenomenon, the occurrence of an unforeseen severe frost can be
attributed to an act of God, hence relieving the defendants of any
liability. In the Indian case of Ramalinga Nadar v. Narayana Reddiar[37] the plaintiff
had booked goods with the defendant for transportation. The goods were
looted by a mob, the prevention of which was beyond control of
defendant. It was held that every event beyond control of the defendant
cannot be said act of God. It was held that the destructive acts of an
unruly mob cannot be considered an Act of God.
In the case of J & J Makin Ltd .v London and North Eastern Railway Co.[38],
liability for damage was imposed on the defendants even if such damage
was caused by an act of God. The defendants were owners of a canal which
crossed a valley at the top of a high embankment. As the result of a
violent storm the embankment collapsed and a great quantity of water
escaped from the canal into the stream below and was carried down to the
plaintiff's mill where it was deposited together with a large number of
stones. The plaintiffs in claiming damages said that the act imposed
absolute liability irrespective of negligence.
ACT OF GOD AND NEGLIGENCE
Act
of God, in law, is an accident caused by the operation of extraordinary
natural force. The effect of ordinary natural causes (e.g., that rain
will leak through a defective roof) may be foreseen and avoided by the
exercise of human care; failure to take the necessary precautions
constitutes negligence. Negligence, in law, especially tort law, is the
breach of an obligation (duty) to act with care, or the failure to act
as a reasonable and prudent person would under similar circumstances.
Both these defences are based on reasonable foreseeability. In terms of
foreseeability, the question is not whether a similar event has occurred
before, but whether the risk that this particular mishap may occur is
foreseeable. Thus, a flood, earthquake, hurricane, or other natural
force need not have previously struck a particular location for
negligence to exist. Liability may still exist if reasonable design,
construction, operation, inspection, or maintenance.
For a
plaintiff to recover damages, this action or failure must be the
"proximate cause" of an injury, and actual loss must occur. In cases of
joint causation, where both human negligence and act of God have a role
to play, the traditional sine qua non ("but for"), substantial factor,
or legal causation tests apply. If the act of God is so overwhelming
that its own force produces the injury independent of the defendant's
negligence, then the defendant will not be liable. If the damages
suffered are incurred solely due to natural causes without any known
fault, there is no liability because of the act of God. There are two
ways of viewing this situation. The act of God either supersedes the
defendant's negligence, or the defendant's negligent act is not a cause
in fact of the injury. In either case, the defendant's act did not cause
the damage since the injury would have occurred anyway. The party
injured in the accident may be entitled to damages. An act of God,
however, is so extraordinary and devoid of human agency that reasonable
care would not avoid the consequences; hence, the injured party has no
right to damages. Accidents caused by tornadoes, perils of the sea,
extraordinary floods, and severe ice storms are usually considered acts
of God, but fires are not so considered unless they are caused by
lightning.
PRESENT DAY POSITION OF THE DEFENSES
The
relationship between these two defences is a slightly ambiguous one.
Going by logic and definition, these two defences are very similar in
nature. In fact, by definition, Vis Major/Force Majeure
is considered a type of inevitable accident. However, a careful study
of their evolutionary process throws results subscribing to the
contrary. These two defences are two distinct forms of escaping
liability in tort. They are, in practice referred to as two separate
defences instead of one being a subset of the other. The very term
"Inevitable accident" is used for incidents where accidents occur by
chance, in the absence of any form of negligence or human error.
Meanwhile, Vis Major specifically restricts itself to severe
and unforeseen acts of nature leading to a particular damage. One
similarity in both these defences is that these grounds stand nullified
if negligence of the defendant is proved. An inevitable accident is an
event which happens not only without the concurrence of the will of the
man, but in spite of all efforts on his part to prevent it. It means, an
accident physically unavoidable something which cannot be prevented by
human skill or foresight. However, in the absence of negligence, Vis Major appears to be a more valid claim. Having resulted from a severe and drastic natural catastrophe, Vis Major easily
has a wider domain. From a philosophical point of view, this is a
principle which makes God the defendant hence making the accident truly
beyond human control. Au contrarie, Liability might be imposed on a
party not negligent on the grounds of the risk involved in the activity
they were doing. A glaring example of this is the non applicability of
"inevitable accident" as a defence in cases of Strict Liability as
opposed to the claim of "Act of God". This can be observed in the Indian
case of A Krishna Patra v. Orissa State Electricity Board[39] where
it was held that Inevitable Accident is not a valid defence in a case
of accidental death due to electrocution. Since transmission of
electricity was a dangerous activity, the principle of strict liability
was applied in this case. The Court further 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
hazardous or inherently dangerous nature of the activity which it has
undertaken......" And "...... We would therefore hold that where an
enterprise is engaged in a hazardous or inherently dangerous activity
and harm results to anyone on account of an accident in the operation of
such hazardous or inherently dangerous activity resulting, for example,
in escape of toxic gas the enterprise is strictly and absolutely liable
to compensate all those who are affected by the accident and such
liability is not subject to any of the exceptions which operate
vis-a-vis the tortious principles of strict liability under the rule in Rylands v. Fletcher.
Thus,
the plea of inevitable accident has, in cases of this type, practically
lost all its utility. The ambit of Inevitable Accident as a defence has
shrunk majorly. The plea of inevitable accident has now substantially
lost its utility[40]. Since the principle of strict liability applies
even in the absence of negligence on the part of the defendant,
inevitable accident in the absence of a natural catastrophe does not
hold any scope as a defence. With growth of scientific knowledge, the
number of accidents that can be termed "inevitable" is fast dimishing.
However, things are a little different for those Inevitable Accidents that involve nature's intervention.
Vis Major as a defence depends on two things; lack of predictability and lack of control.
If either criteria is missing, the defence fails. Both were solidly
based for centuries on the lack of scientific knowledge. Man not only
lacked the ability to predict the forces of nature, but also the ability
to guard against, control, or otherwise minimize their impacts. In the
words of the ancient mime writer Publilius, ‘it is vain to look for a
defence against lightning'. Today, foreseeability is based not only upon
the past, but also upon that which modern technology and science allow
us to project into the future. Science has advanced to the point where
we can understand many forces of nature, such as precipitation and
flooding. Historically, we know which areas have been subjected to
specific forces of nature. Scientifically, we can predict the areas
which may be subjected to such forces. At first glance, the act of God
defence should continue to play a role in strict liability cases. Part
of the underlying purpose of the act of God doctrine was to ameliorate
strict liability. In strict liability a number of exceptions have
evolved. Whether a particular occurrence amounts to an Act of God is a
question of fact, but the ambit of this defence is somewhat restricted.
Increased knowledge seems to limit the unpredictable. Natural hazards
are no longer a mystery to us. Hence, the applicability of the act of
God defence has shrunk in inverse proportion to rapidly expanding
concepts of foreseeability. Conversely, environmental changes at the
global level have left some scope for Vis Major as a defence.
Unforeseen disasters like the July 26, 2005 floods in Mumbai or the
devastating Tsunami on 26 December 2004, which was the result of severe
earthquake with its epicentre at Indonesia can still be attributed to
acts of God. These disasters were completely unforeseen and any prior
intimation about the same would not have helped bring the situation
under control. Such natural catastrophe has left some scope for the use
of Act of God as a defence.
[1]Ratanlal and Dhirajlal, Law of Torts, (Wadhwa, Nagpur, 24th Ed., 2002) : Margaret Brazier and John Murphy, Street on Torts, (Butterworths, London Edinburgh Dublin, 10th Ed., 1999)
[2] Greencock Corporation v. Caleodonian Railway Co., (1917) AC 556
[3] M N Shukla, The Law of Torts,(Central Law Agency, Allahbad, 16th Ed 1998)
[4] American Jurisprudence, Second Edition
[5] Margaret Brazier and John Murphy, Street on Torts, (Butterworths, London Edinburgh Dublin, 10th Ed., 1999)
[6] Fowler v. Lanning (1959) 1 All ER 290
[7] 43 Emory L.J. 575, Pg (610)
[8] Hob. 134, 80 Eng. Rep. 284 (K.B. 1616). C.F. 43 Emory L.J. 575, Pg (591)
[9] 43 Emory L.J. 575, Pg (590)
[10] Clerk and Lindsell, Clerk & Lindsell on Torts, (Sweet & Maxwell, London, 17th Ed., 1999)
[11] 43 Emory L.J. 575, Pg (611)
[12] 43 Emory L.J. 575, Pg (611)
[13] 43 Emory L.J. 575, Pg (635)
[14] 43 Emory L.J. 575, Pg (641)
[15] (1872) 15 Wallace 524
[16] (1875) LR 10 Ex 261, 267
[17] (1932) 146 LT 391 (392)
[18] PER LORD DUNEDIN in Fardon v. Harcourt-Rivington, (1932) 146 LT 391 (392)
[19] (1859) 6 Cussing 292
[20] Clerk and Lindsell, Clerk & Lindsell on Torts, (Sweet & Maxwell, London, 17th Ed., 1999)
[21] (1868) LR 3 HL 330
[22] Supra
[23] Clerk and Lindsell, Clerk & Lindsell on Torts, (Sweet & Maxwell, London, 17th Ed., 1999)
[24] Margaret Brazier and John Murphy, Street on Torts, (Butterworths, London Edinburgh Dublin, 10th Ed., 1999)
[25] (1987) 1 SCC 395
[26] Nugent v. Smith Infra 21 , Vithaldas v. Municipal Commissionar of Bombay, (1902) 4 Bom LR 914
[27] Slater v. Worthington's Cash Stores (1941) 1 KB 488
[28] Rule deals with remainders in the transfer of real property by deed
[29] 92 Eng.Rep 107 (1703).
[30] Raym. 220. 1 Vent. 190, 238
[31] (1785) 1 TR 27
[32] (1875) LR 10 Ex 255
[33] (1917) AC 556 (HL)
[34] (1878) 9 Ch D 5
[35] (1876) 1 CPD 423,435
[36] (1856) H Ex. 781
[37] AIR 1971 Kerala 197
[38]1 All ER 362
[39] AIR 1997 Orissa 109
