difference between act of god and inevitable accident

8/11/2019 Difference Between Act of God and Inevitable Accident

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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 tortiuous 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


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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:

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.

The defence of inevitable accident in personal injury litigation is

one that posits a non- tortious explanation for an accident. It

asserts that where an accident is purely inevitable, and is not

caused by the fault of either party, the loss lies where it falls.


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According to the authorities, once the plaintiff establishes a

prima facie case of negligence, the onus will shift to the

defendant to prove inevitable accident. In so doing, the

defendant is required to show how the accident took place

and that the loss of control of the vehicle could not have

been avoided by the exercise of the greatest care and skill.

A defendant may thus escape liability by showing one of two

things:

(i) the cause of the accident, and the result of that cause was

inevitable; or

(ii) all the possible causes, one or other of which produced

the effect, and with regard to every one of these possible

causes that the result could not have been avoided.

This standard, though certainly a high one, is not a test of

perfection.

In light of the foregoing general principles, a plaintiff seeking

to undermine or defeat a defendants reliance on the defence

of inevitable accident must challenge with evidence and

argument the defendants explanation of how the accident,collision or mishap occurred without his negligence. As is

clear from a perusal of the recent jurisprudence, there are

definite limitations on the availability of the defence and it is

unlikely to prevail if the person seeking to invoke it caused

or contributed in any way to the emergency situation.

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Some of the factors that will be relevant in considering

whether the conduct of a driver can be characterized as

negligent, such that the doctrine of inevitable accident ought

not to be engaged, include: road conditions, weather, speed,

the condition of the vehicle, the intensity of the vehicles

headlights, the drivers experience and his/her familiarity

with the roadway, the drivers reaction to the risk presented,

any evasive action taken, other traffic on the roadway, and

the physical and mental condition of the driver (ie. fatigued,

distracted, dizzy, experiencing a medical crisis or condition,

etc.)

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 VisMajoror Force Majeuremay 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. Vis Major includes those

consequences which are occasioned by elementary force of

nature unconnected with the agency of man. Common examples


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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.

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.

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.

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


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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. 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, the bolting horse case from 1398. The

complaint in Whitelockwas 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


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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 Weaverv. Ward,

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 seemalways to have been necessary.

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


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been driven against another vessel or vessels, or against a fixed

structure. Property damage cases also involved destruction by

fire. In Tuckerv. Smith(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 Ellisv. Angwyn(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 inevitableaccident should be pleaded is Gibbons v. Pepper. 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


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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 Gibbonscourt 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 (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

declarationexcused" 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 plaintiffcould 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 Glycerinecase, 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


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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, 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 Fardonv. Harcourt-Rivington,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 thecar, 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" In the absence of negligence, the

plaintiff could not recover damages. In the case of Brown v.


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Kendal, the plaintiffs 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 theclaimant. Nor is the position different in a case of res ipsa

loquitor, for that merely raises a prima facie case.

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


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, have been foreseen or if foreseen, could not by any amount of

care and skill have been resisted. 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. VisMajor to afford a defence, must be the proximate cause, the causa

causans, and not merely the causasinequononof the damage

complained of. 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


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do. In a sixteenth century opinion, in the Shelly'sCasebest known

for the famous property law doctrine of the rule in Shelley'sCase,

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 Coggsv.

Bernard, which invoked liability for a bailment by a common

carrier. Justice Powell opined that a bailee shall answeraccidents,

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 prominencein 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 Morsev. Slue, Judge Hale stated that the master is

not chargeable in the case of pirates, storms, and the like, "but


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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

Forward v. Pittard, 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 Nicholsv. Marsland, the defendant had a series

of artificial lakes on his land in the construction and maintenanceof 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


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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., 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 Rylandsin 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 Nicholswas from a reservoir rather than a natural

stream, and a jury in Nicholsfound the flood was due to an act ofGod. 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., where an

extraordinarily high tide may well have constituted an act of God,


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but the defendant was still negligent because it built a dock

insufficiently high. As stated by Lord Justice James in Nugent v.

Smith, 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, 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, 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 thatthe destructive acts of an unruly mob cannot be considered an Act

of God.

In the case ofJ & J Makin Ltd.v London and North Eastern Railway

Co., 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


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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 v. INEVITABLE ACCIDENT

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, VisMajor/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


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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 apotential 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


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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 Rylandsv. 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 ofpredictability 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


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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 inMumbai 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.


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Such natural catastrophe has left some scope for the use of Act of

God as a defence.

CONCLUSION


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BIBLIOGRAPHY

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)

M N Shukla, The Law of Torts,(Central Law Agency, Allahbad,

16th Ed 1998)

WINFIELD and JOLOWICZ, Tort, 18th edition, p.718

difference between act of god and inevitable accident

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