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Act of God (Vis Major) as a Defence under Tort Law

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ACT OF GOD ( VIS MAJOR) AS A DEFENCE UNDER TORT LAW

This article is written by Preeti Bafna from Unitedworld School of Law, Karnavati University. Black’s Law Dictionary defines an act of God as “An act occasioned exclusively by the violence of nature without the interference of any human agency.” A natural necessity proceeding from physical causes alone without the intervention of man. It is an accident which could not have been occasioned by the human agency but preceded from physical causes alone.”

INTRODUCTION

An act of God is a general defence used in cases of torts when an event over which the defendant has no control over occurs and the damage is caused by the forces of nature. In those cases, the defendant will not be liable in the law of tort for such inadvertent damage. Act of God 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, thus the calamities that do not involve the obligation of paying for the consequences that result from them.

Act of God or Vis Major

The ‘act of God’ defence is based on the tort law principle that liability must be founded on a fault and that a person cannot be penalized where the fault is that of a ‘vis major’ where all precautions were taken, and a casualty still occurred.

Vis major is defined, as “A loss that results immediately from a natural cause without the intervention of man, and could not have been prevented by the exercise of prudence, diligence, and care.”

According to Salmond “an act of God” includes those acts which a man cannot avoid by taking reasonable care. Such accidents are the result of natural forces and are incoherent with the agency of man.

Thus it is an act which “ is due to natural causes directly and exclusively without human intervention, and that it could not have been prevented by any amount of foresight and pains and care reasonably to have been expected from him i.e. the defendant. According to Lord Mansfield, an act of god is defined as “it is something in opposition to the act of man”.

Elements of Act of God

NATURAL CAUSES: An act of God is an uncommon, extraordinary and unforeseen manifestation of the forces of nature, or misfortune or accident arising from inevitable necessity. An act of God cannot prevent by reasonable human foresight and care.

The effect of ordinary causes may be foreseen and avoided by the exercise of human care. For example, the fact that rain will leak through a defective roof is foreseeable by an ordinary man. In the case of foreseeable causes, failure to take the necessary precautions constitutes negligence, and the party injured in the accident may be entitled to damages. An act of God, therefore, is so extraordinary and devoid of human agency that reasonable care would not avoid the consequences. Therefore in such cases, the injured party has no right to damages.

1. An Occurrence not Reasonably Foreseeable

The basic and prime element of an “act of God” is the happening of an unforeseeable event. For this, if the harm or loss was caused by a foreseeable accident that could have been prevented, the party who suffered the injury has the right to compensation. However, the damage caused by an unforeseen and uncontrollable natural event is not compensable as it could not have been prevented or avoided by foresight or prudence of man.

Moreover, courts are of the opinion that the “act of God” defence exists only if the event is so exceptional and could not have been anticipated or expected by the long history of climate variations in the locality. It is constructed by only the memory of man i.e. recorded history. The courts may demand expert testimonies to prove that an event was unforeseeable.

2. Impossible to Prevent by any Reasonable Precautions and Absence of Human Agency Causing the Alleged Damage

It means practically impossible to resist. Negligence constitutes a failure to take the necessary precautions. In an incident where a human factor was present, even though the harm could not be prevented, the fact that the human factor exercised reasonable care and precautions to prevent the harm has to be proved if the defence of “act of God” has to prevail. If negligence is alleged and proved, then the defence of “act of God” will fail. If an owner was negligent in properly maintaining a tree that fell on a passerby, he cannot be exempted from liability by “act of God” principle.

Case Laws

  1. In the case of Nichols v. Marshland [1]the defendant has a number of artificial lakes on his land. Extraordinary rain such as had never been witnessed in living memory caused the banks of the lakes to burst and the escaping water carried away four bridges belonging to the plaintiff. It was held that the plaintiff’s bridges were swept by an act of God and the defendant was not liable.
  2. In the case of Blyth v. Birmingham Water Works Co[2]the defendants had constructed water pipes which were reasonably strong enough to withstand severe frost. There was an unprecedented severe frost that year causing the pipes to burst to result 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, thus the relieving the defendants of any liability.
  3. In the case of Ramalinga Nadar v. Narayana Reddiar[3] the plaintiff had booked goods with the defendant for transportation. The goods were looted by a mob, the prevention of which was beyond the control of the defendant. It was held that event beyond the 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.

CONCLUSION

Although the act of God defence – that a defendant is insulated from liability for personal injury or property damages caused by a natural cause – is rarely used, it may become more common and general in the future if predictions of disastrous weather events caused by global warming prove true. One prediction related to global warming is that catastrophic weather events such as hurricanes, tornados, and torrential rains will occur more often. All of these have the potential for causing extensive personal injury and property damage and consequently mental trauma.

[1] [(1876) 2 ExD1 ]

[2] (1856) 11 Ex Ch 781

[3]  (AIR 1971 Ker 197)

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Specific Protection under Law of Torts

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This article is written by Darshika Lodha, a BBA.LLB(Hons.) student of Unitedworld School of Law, Karnavati University. This article deals with the general defences available under the Law of Torts.

INTRODUCTION

When an action for tort is brought against the defendant, the person will certainly be made liable if he had committed the Act. However, in every action for tort, certain defences are open to the defendant, by way of which he can escape his liability. There are eight General Defences are as follows:

  1. Voleneti non fit injuria
  2. Plaintiff the wrongdoer
  3. Inevitable Accident
  4. Act of God
  5. Private Defence
  6. Necessity
  7. Statutory Authority
  8. Mistake

All the general exceptions are discussed in detail below:

1. Volenti non-fit injuria

If the plaintiff has consented to a wrongful act with free consent, without the threat of fraud or coercion to acknowledge the danger voluntarily, he shall have no right to sue the defendant under which both have consented. Consent happens when the plaintiff shows interest in the actions of the defendant. As a result, no man can impose a right that he has willingly surrendered or abandoned and in the case of Hall v. Brooklands Auto-Racing Club[1], the court held that the plaintiff had deliberately taken the risk of watching the race. It’s a type of injury that anyone watching the event could predict. In this case, the defendant was not liable.

2. Plaintiff the wrongdoer

The law excuses the defendant when the act done by the plaintiff itself was illegal or wrong. This defence arises from the maxim “ex turpi causa non oritur action” which means no action arises from an immoral cause. Thus, an unlawful act of the plaintiff could lead to a valid defence. If the defendant claims that the plaintiff is the wrongdoer himself and is not entitled to damages, it does not mean that the court will leave him free from responsibility, but that he will not be liable under that heading. In the case of Bird v. Holbrook[2], the plaintiff was entitled to recover the damages he had suffered as a result of the sprint guns he had put in his garden without knowledge of the same.

3. Inevitable accident

The inevitable accident was a mishap. It can not be prevented despite the attention and care of the ordinary and intelligent individual. It is also a successful defence if the defendant can show that it neither intended to harm the complainant nor could it prevent injury by taking proper care of him. There is no inevitable accident unless the defendant can prove that something happened that he did not have control over and that the effect could not have been avoided and in the case of Stanley v. Powell, The defendant fired at a pheasant, but the bullet struck the plaintiff after the oak tree had been reflected, and he suffered serious injuries. The incident was considered an inevitable accident and the defendant was not liable.

4. Act of God

The act of God or Vis Major or Force Majeure used in cases where an event over which there is no human control of the act and the damage is caused by the forces of nature. This is beyond human imagination and can not be prevented by human intervention. Act of God is also defined as “Action induced solely by the violence of nature, without any human interference”.  Some of the essentials of Act of God are:

  • The act should be the result of a natural force.
  • It’s extraordinary in nature.
  • No human interference at all

In the case of Nichols v. Marshland[3], there has been an exceptional storm, the highest in human history. It caused the lake bank to burst, and the escaped water carried away four bridges belonging to the plaintiff. It was therefore held that the bridges of the plaintiff had been swept by an act of God, and that the defendant would not be held liable for the same thing.

5. Private Defence

Private defence refers to the defence, where the defendant seeks to protect his or her body or property or any other property and harms another person with reasonable force in imminent danger, where there is no time to report to the authority, it is, therefore a private defence.

6. Necessity

If an action is taken to avoid more damage, even though it has been done deliberately, it is not actionable and acts as a good defence. It gives a person or state the right of using or taking away the property of another. It is well described in the maxim “Solus Populi Suprema Lex,“ i.e. people’s wellbeing is the ultimate law. The act that causes certain damage is, therefore, an excuse when it is done for a large number of people or to avoid harm. It can be explained in the case of Carter v. Thomas[4], the defendant, who breached the plaintiff’s property in good faith to extinguish the fire in which the firefighter had already served, was held responsible for the trespass.

7. Statutory Authority

If an act is authorized by a legislative statute or enacted by the legislature, the defendant will not be held responsible for damages arising from the statute. The powers conferred on the legislature should be exercised with caution so that no unnecessary damage is done and the person must act in good faith and not exceed the powers conferred on the legislature. In the case of Hammer Smith Rail co. v. Brand[5], the plaintiff’s property value was depreciated as a result of loud noise and vibrations produced while the train departed from the railway line, which had been made under statutory provisions. The court held that nothing could be claimed for the damage suffered as had been done under the statutory provisions. In the case, the defendant was held not liable.

8. Mistake

If the defendant acts based on a misconception in certain situations, he may use the defence of error to avoid liability under the law of wrongdoing. This defence can be well explained in the case of Consolidated Company v. Curtis[6], the auctioneer auctioned some of his customer’s goods, believing that the goods belonged to him. But then the true owner filed a suit against the auctioneer for a conversion error. The court held that the auctioneer was liable and stated that the mistake of fact was not a defence, which could be pleaded in this case.

Conclusion

Thus, to sum up, there are various general defences available to the defendant which can be pleaded by him to escape the tortious liability. The plaintiff must bring an action against the defendant for a particular tort, the plaintiff is required to prove all the essentials of that particular tort. If the plaintiff fails to prove all the essential ingredients, the defendant cannot be made liable for the act. However, once the plaintiff proves all the ingredients, the burden of proof then shifts to the defendant who pleads for the defence.

[1] (1932) 1 KB 205

[2] 1825

[3] (1876) 2 ExD 1

[4] 1976

[5] [1869] LR 4 HL 171

[6] (1892) 1 QB 495

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