History: The Act Of God Defence

The Law of Tort is a developing and ever dynamic field and is a conception evolving through centuries. This field is used with principles under which tortuous liability can be demanded. Simultaneously, certain other principles are used, to oppose 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 defences were framed 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. One such defence which will be discussed elaborately with cases subsequently is ACT OF GOD.

MEANING

Act of God means an event which happens independently of human action such as death from natural causes (Actus dei nemini facit injuriam), storm, earthquake, tides, volcanic eruptions etc., which no human foresight or skill could reasonably be expected to anticipate. For example, damage from a tornado or a lightning strike would be considered an act of God. Damage would not be considered an act of God if it is caused by the property owner.

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Vis is a Latin word meaning any kind of force, violence or disturbance to person or property. Vis major is an act of God. The doctrine states that a person is absolved of liability if it was directly caused by vis major.

LEGAL DEFINITION

Act of God was first judicially defined in Tennet v. Earl of Glosgow Lord Westbury, was first recognised by Blackburn J. in Rylands v. Fletcher and was first applied in Nichols v. Marsland and many other cases.

Black’s Law Dictionary defines an act of God as “An act occasioned exclusively by 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 human agency but proceeded from physical causes alone.”

Vis major is similarly defined, as “A greater or superior force; an irresistible force. 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 “act of God” includes those acts which a man cannot avoid even by taking reasonable care. Such accidents are 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 . Accor ding to Lord Mansfield, it is something in opposition to the act of man.

Conclusion: It has been said that it would be probably never be capable of complete, exact & unassailable definition. But it has also been said that this “untheological expression” is well understood by lawyers. It is such a direct, violent , sudden act of nature that no man could forsee and if he can, he can’t prevent it.

ELEMENTS

NATURAL CAUSES

An act of God is an uncommon, extraordinary and unforeseen manifestation of the forces of nature, or a misfortune or accident arising from inevitable necessity. An act of god cannot be prevented by reasonable human foresight and care.

The effect of ordinary natural 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. In 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, however, 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.

Acts of god are generally attributable to forces of nature. They are generally in the nature of accidents caused by tornadoes, perils of the sea, extraordinary floods, and severe ice storms. Snowstorms of great violence have been held to be acts of God. Whether freezes are acts of God depend on the locality and season of the year” in which they occur, i.e., their foreseeability is affected to a greater extent than other natural occurrences by these factors. Catastrophic earthquakes and volcanic eruptions should be defined as acts of God since they measure up to the accepted definitions of act of God in every

respect. However, fires are generally not considered acts of god unless they are caused by lightning. Whether or not a particular natural event warrants such an adjective is a function of such things as the intensity of the event, characteristics of the area, and climatic history.

UNUSUAL VIOLENCE- BOTH SUDDEN AND IRRESISTIBLE

AN OCCURRENCE NOT REASONABLY FORSEEABLE

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 even demand expert testimonies to prove that an event was unforeseeable.

IMPOSSIBLE TO PREVENT BY ANY REASONABLE PRECAUTIONS AND ABSENCE OF HUMAN AGENCY CAUSING THE ALLEGED DAMAGE

It means practically impossible to resist. Negligence constitutes 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, the defence of “act of God” will fail. If a home owner was negligent in properly maintaining a tree that fell on a passerby, he cannot be exempted from liability by “act of God” principle.

In Clark v. Multnomah, the Court made a decision that the flooding of a house was not an act of God where it was caused by the breakage of a pipe fitting in the house. The cause of harm was evidenced by the fact that a repairman had worked with the part that broke just hours earlier.

ESSENTIALS

There must be operation of natural forces like exceptional rainfall, storms, tempests etc. without any human intervention.

The incident must be extraordinary and not which could be anticipated and reasonably be guarded.

ORIGIN & HISTORICAL EVOLUTION

The term ‘act of God’ occurs and is described in holy texts dating back to the 13th century, specifically referring to acts that God has undertaken. The ‘act of God’ referred is that which is used in legal and insurance circles when discussing any act which is outside human control and governance and therefore not the responsibility of any individual or corporation. The term was first used in this way in the mid-19th century. Peter Simmonds’ Dictionary of Trade Products, 1858, uses the term:

“Force-majeure, a French commercial term for unavoidable accidents in the transport of goods, from superior force, the act of God, etc.”

In July 1803, The Times included this legal ruling given in a court case by Lord Ellenborough, which is in terms that we are now familiar with from our own household insurance policies:

“By Common Law, Carriers are insurers against every loss of property entrusted to their care, except losses arising from the Act of God, or the King’s enemies.”

Earthquakes, floods, hurricanes, tornadoes, wildfires, drought and a deadly tsunami are a long series of natural calamities of seemingly large proportions have been witnessed by us . Lives are lost, properties destroyed , and emotions shattered when these forces of nature tragically strike. The nature’s blow may be so intense that it may come as a total shock and baffle both to the direct victims of the disaster and, subsequently, to the accused tortfeasors 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. Act of God, as a legal concept 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, direct concept with few gradations or intricacies. Consequently, all too often, many lawyers have misused the phrase “act of God” to mean any unfortunate act of nature. In a sixteenth century opinion, in the Shelly’s Case best known for the famous property law doctrine, the court wrote in terms of performance becoming impossible by an act of God, which was the death of one of the parties. In an attempt to give life to this notion of fairness, the courts in Shelley’s Case and other early decisions drew lines between those acts which were natural and those which were caused by man, so as to forgive man for those acts that were beyond his anticipation or control. 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 again appeared in the 1702 case of Coggs v. Bernard, 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.

In 1785, Lord Mansfield delivered a unanimous opinion in Forwardv. 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.

CASE LAW: In Nichols v. Marsland(1875)( Discussed in judicial cases section)

APPLICATION

“Act of God” is often a difficult defence to establish. It requires both the exclusion of human agency and unforeseeability to establish an act of God. For an event to be a legal act of God, the natural event must have been the “sole and immediate cause of the injury,” with no “co-operation of man, or any admixture of human means.

Generally speaking, then, the vis major defence can apply to a case involving damage or harm by a natural force, but only in circumstances in which that force is strong enough to overcome and nullify any potential contributory cause by a human agency. The issue is whether the magnitude of force is reasonably foreseeable such that a defendant should have taken precautions to avoid personal injury or property damage resulting from it. For example, a 55-mile-per-hour wind gust, though rare, is reasonably foreseeable in Wisconsin. However, a 200-mile-per-hour tornadic wind is probably not; the vis major defence would apply to personal injury or property damage caused by such a force, even if a human agency (for example, a product such as a window or door) was involved.

With respect to rain: An hourly rainfall of three inches, while heavy, is not unforeseeable in Wisconsin; an eight-inch hourly rainfall probably is. A basement collapse would probably implicate the vis major defence in favour of a basement contractor in the latter circumstance but not in the former circumstance. When property damage or personal injury is caused in part by a natural force and in part by a human instrumentality, the plaintiff should argue that the natural force was foreseeable and should have been anticipated in a manner that would have avoided the damage. The defendant then has the burden to establish that the natural-force component of the cause was so huge and so monumental that it was not reasonably foreseeable.

The point is that the occurrence of natural phenomenon need not be unique, nor need it be one that happens for the first time; it is enough that it is extraordinary or exceptional and so as it could not be reasonably anticipated and also it must be free from human conduct.

The word ‘vis major’ imports something abnormal and with reference to the context means that the property by the act of God has been rendered useless, for the time being i.e. it was rendered incapable of any enjoyment.

Vis Major to afford a defence must be the immediate cause, the causa causans, and not merely a causa sine qua non of the damage complained of. The mere fact that vis major co-existed or followed on the negligence 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. The legal maxim ‘Actus dei nemini facit injuriam’ means the Law holds no man responsible for the act of God.

The important thing in regard to vis major is not the positive intervention of natural forces but “a process of nature not due to the act of man” and it is this negative side which deserves emphasis. It is thus a negation of liability.

Complete exclusion of human cause is a difficult standard for a defendant to overcome, which likely explains why the defence is not commonly argued or upheld. As a result, modern courts sometimes characterize acts of God as “unavoidable accidents” because, although the terms often are synonymous, unavoidable accidents need not be free from human agency.

ACT OF GOD AND INEVITABLE ACCIDENT DISTINGUISHED

Every act of God is an inevitable accident but not vice versa.

An Act of God is discrete and distinct from inevitable accident. In order that an accident may be an act of God it must have followed directly from natural causes without human intervention. In Nugent v. Smith, Cockburn, C.J. said “All causes of inevitable accident, casus fortuitous meaning an uncontrollable accident, may be divided into two classes:

Those which are occurred by elementary forces of nature not connected with the agency of man or other cause [Act of God]

Those which arises either wholly or in part by agency of man. [Inevitable Accident]

Example- 1. If a ship is pushed ashore by a violent storm, this is the Act of God; but if it is run ashore during a fog by mistake, however unavoidable on the part of captain, this is the act of man.

If a building is set on fire by lightning, this is an act of God; but not so if it is done by human through falling of a lamp even though this was due to no negligence.

INEVITABLE ACCIDENT

ACT OF GOD

Could not be prevented by the exercise of ordinary care, caution and skill

A direct violent, sudden and irresistible act of nature as could not, by any amount of human care and skill have been resisted is Act of God.

May be controlled by human beings

2. Not controlled by human beings.

3. Strict liability can be imposed on

the tortious liability occurred due to

inevitable accidents

3. Even strict liability can also not be

Imposed in cases of torts arising

out of acts of Gods

4. The courts have discretionary

power in determining the

defendant’s tortuous liability

4. No discretionary power

Conclusion : The defence of inevitable accident is a more general defence and is distinct from the act of God in so far as it is dependent on human agency and not on natural forces and in the degree of unexpectability.

ACT OF GOD & 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 (act of God & Negligence) 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.

JUDICIAL CASES

Nichols v. Marsland [1] 

In this case, The defendant had constructed certain artificial lakes on her land by damming up a natural stream at appoint higher up than the defendant’s land. An extraordinary rainfall, “greater and more violent than any within the memory of witnesses”, caused the stream and lakes to swell to such an extent that the artificial banks burst and the escaping water rushed on to the plaintiff’s land and carried away four county bridges. Nichols, the plaintiff brought an action for damages on the plea that the defendant was liable under the rule in Rylands v. Fletcher [2] .

HELD: The contention was rejected and the defendant was held not liable. The Court of Exchequer Chamber held that she ought not to be liable for an extraordinary act of nature which she could not reasonably foresee. It was said that one is only bound to provide against the ordinary operations of nature, but not against her miracles.

Greenock Corpn. V. Caledonian Railway Co. [3] 

The facts were that the corporation in laying out a park constructed a pool for children in the bed of a stream and there altere its course and obstructed its natural flow. Owing to rainfall of extraordinary intensity, the stream overflowed at the pond and great volume of water poured down a streetand flooded down the property of a railway company.

HELD: It was held that this was not damnum fatale and the Corp. was liable. Nichols case was distinguished on the ground that in that case it was the storing of water in a reservoir and not with interference with the course of natural stream and that anyone who does interfere with it must provide against even an extraordinary rainfall.

State of Mysore v. Ramachandra [4] 

In this case, the State had constructed a reservoir for the supply of drinking water for the villagers of Nipani. But the construction was not completed and the over-flow channel linked with reservoir was partially constructed. Land and crops were damaged due to flow of water resulted from rain. The plaintiff filed the suit for damages.

HELD: The State resisted the suit that it was the act of God. But, the court rejected the defence and observed – “Assuming an act of God such as flood wholly unprecedented, the damage in such a case results not from the act of man in that he failed to provide a channel sufficient to meet the contingency of the act of God. But for the act of man there would have been no damage from the act of God.”

T. Gajayalakshmi v. Secretary, PWD, Govt. of T.N. [5] 

The deceased, a cyclist, who was going on his way was electrocuted by the falling of an overhead electric wire.

HELD: The court rejected the contention of Electricity board that it was an unexpected event due to rain and wind and that the snapping of the electric wire was an act of God. It also rejected the plea that the death took place due to the negligence of the deceased in his leaving the home that day in rain and wind.

Mahindra Nath Mukherjee v. Mathuradas Chaturbhuj [6] .

A cinema advertising board was placed on the roof of the defendant which fell down and injured the plaintiff. Plaintiff brought a suit against the defendant and contended that the board fell due to storm of unusual severity. But, it was observed that during the season of monsoon a storm of this magnitude is not uncommon. The defendant had not ensured or foresee that the fixing of banner on such a height is strong enough to face the pressure of storm during monsoon season. The Calcutta High Court held that such a storm cannot be said to be so unexpected that no human foresight could reasonably be expected to anticipate it and cannot be regarded as ‘vis major’ or ‘act of God’. Hence, the suit was allowed and the defendant was found negligent. Before the act of God can be admitted the defendant could have taken reasonable care and done all that what he was bound to do.

Kallulal v. Hemchand [7] 

The defendant constructed a building and it was collapsed and as a result of it, two sons of the plaintiff were dead. Before the day the building collapsed there was a heavy rain. The defendant pleaded the rain as an act of God

HELD: The court observed that the Acts of God must be apparent on the face of the records. They must be known and affect largely to entire public. The defendant was held liable.

The act of God or vis major can also be explained mathematically as follows:

(i) Unprecedented + Unforeseen + Irresistible = Act of God

(As it has been discussed in this Chapter in the cases Nichols v. Marsland; Mahindranath v. Mathura Dass)

(ii) Unprecedented + Foreseen + Irresistible + Act of God

(Nichols v. Marsland case)

(iii) Precedented + Unforeseen + Irresistible = Act of God

(Greenock Corporation case)

(iv) Precedented + Foreseen + Irresistible = Act of God

(Greenock Corporation and Mahindranath cases)

EXAMINING ACT OF GOD – PRESENT SITUATION

Vis Major as a defence depends on two ; 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.

Flaws in The Common Law’s Approach to The Act Of God Defence

1. The Problem of Increasing Event Foreseeability

In terms of Event Foreseeability, there are two independent trends which suggest a strong possibility that climatic events which historically qualified as Acts of God may become increasingly foreseeable: improved meteorological techniques and the effects of climate change.

It is undeniable that there is increased data available and increased forecasting powers inherent in the continuing development of meteorological science.

This trend has two impacts on the foreseeability of such climatic events for purposes of the Act of God defence: (1) defendants can increasingly know that the hurricane or storm is coming with time to take some precautionary steps in response because they will be warned of it (so that it will be more difficult to say that the event was “unexpected” or “unanticipated”); and (2) climatic data of past storms will continue to accumulate (so as to support conclusions that the event is not “unusual” for the location at that time of year). In short, the climatic events which historically may have been considered Acts of God will be more foreseeable in the future and thus less likely to support the defence simply because we will know more and more about the weather. In short, as climatic change increases the frequency and intensity of hurricanes, heavy storms, and the flooding associated with such climatic events, it appears that it will be harder for defendants to claim that the events themselves or the consequences of those events were not foreseeable. Thus, the defence is likely to be diminished in its utility simply because it will be harder to satisfy the legal requirements relating to the Event Foreseeability necessary to invoke the defence

2. The Problem of Response Forseeability

As the climatic events themselves become more foreseeable, Response Forseeability becomes more critical to the Act of God defence because the burden is on the defendant to show that it took reasonable precautions in light of the foreseeable risk. It is here that foreseeability in the context of the Act of God defence really breaks down because of the inability of the defendant to foresee what the adequate response is before the climatic event occurs.

To illustrate the problem, consider a fact pattern taken from the Act of God case law: a warehouseman holding goods for a customer in a Gulf Coast state in which a hurricane could strike. Given that a significant climatic event (i.e. a hurricane in the Gulf) is foreseeable, the court will have to analyze whether the defendant’s actions were reasonable in light of the foreseeable risk.

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. Therein lie the core for more frequent, common and general use of the vis major defence. Is it still viable? How might it apply as a defence to tort?

The act of God defence is as common today as ever. Though, it is still not relied on very often, likely because of the difficulty of proving that human elements played no role in causing an injury.

The potential application of vis major will expand if meteorological predictions concerning climate change through global warming come to accomplishment and realization. However, as these events become more common, the standard of what constitutes a reasonably foreseeable natural force will doubtless itself expand. This again would confine application of the vis major defence insofar as defendants become obligated to anticipate and account for effects of more extreme and dangerous natural phenomena, especially those associated with the weather.

However, in the era of global climate change, courts can hardly pretend that causation can be determined to be “natural” or “human.” Storm patterns and frequencies are changing. Growing seasons are shifting. Glaciers are melting and seas rising. Global climate change will present courts with the kinds of difficult factual situations that make it impossible to pretend the old act of God divide should stand untouched. Even though a particular defendant in a given case may not have been demonstrably at fault, the act of God doctrine remains analytically flawed because it requires that “nature” be the sole cause of a phenomenon to the exclusion of all human action