Act of God (Vis major) in Tort Law

An Act of God or vis major is a general defence used in case of an incident/occurrence in which the defendant has no power over it. In such a case, the damage is inflicted by the forces of nature and in such circumstances, the defendant would not be responsible for any unintentional harm under the rule of tort. This article explains the meaning of an Act of God as well as its elements in the context of Tort Law.

I. Introduction

An act of God is defined as situations that no human foresight can provide against any of which the possibility is not bound to be recognised by human prudence and which occur when they do, hence the calamities that do not entail the obligation to pay for the consequences resulting from them.

The ‘act of God’ defence is founded on the principle of tort law that responsibility must be based on a fault and that a person should not be prosecuted where the fault is that of a ‘vis major’ where all measures have been taken but there has still been a casualty.

II. Understanding Vis Major

Vis Major is derived from the Latin words vis major: vis (force) + major (greater), i.e., an irresistible force of nature that has irreversible effects that may exclude one from a contract’s obligations under such conditions.

Superior power is the meaning of the expression vis major. In law, it implies an unavoidable accident. In civil law, this phrase is used in much the same manner as the words Act of God in common law are used. In addition, no one is accountable for an injury that happens from a vis major.

It is possible to interpret the act of God as a natural phenomenon that no one can avoid, such as an earthquake, a tidal wave, a volcanic eruption, or a storm. God’s actions are relevant for two reasons:

1. They wreak mayhem and damage and
2. Since contracts often say that “God’s actions” are a reason for interruption or inability to perform a commitment or inflict injury to a group for which someone else may be held accountable.

III. Act of God as defined by Winfield and Jolowicz

Where an act is specifically induced (harmful to a party) by natural causes without human interference in “circumstances that no human forethought can provide for and against and where human pragmatism is not compelled to consider the opportunity,” the Act of God can be implemented as a defence.

The Act of God was recognized by Blackburn J. in Rylands v. Fletcher^[1]. The details of the case are that B, the owner of the plant, had engaged private, professional contractors to build a reservoir to provide his mill with water. The contractors came across some old shafts and tunnels on B’s land in the process of operation. They interact with the mines of A, the neighbour of B, but it seems like no one believed this because the shafts were packed with earth.

They were not blocked by the contractors and when the reservoir was filled, the water from it burst through the old shafts and flooded the mines of A. The ruling was that the defendant should justify himself by proving that the escape was due to the default of the complainant or perhaps the escape was the result of vis major or the Act of God.

IV. The Mill in the land of B for which a reservoir was built resulted in legal damage to A.

Also, the aforementioned rule was applied in Nichols v. Marsland^[2]. The defendant had been in possession of several artificial ornamental lakes created by the damming up of a natural stream for several years in this case. The artificial embankments were torn down by an “extraordinary rainfall, stronger than any in the memory of witnesses,” and four bridges were swept away by the surge of escaping water causing damage to the claimant. For the complainant, the verdict was provided that she was not negligent and the court ruled that she could not be blamed for an exceptional act of nature that she did not possibly expect.

It is a matter of fact when a single event amounts to an Act of God, but the propensity of the courts today is to restrict the reach of the defence, not just because strict liability is considered ideal, but because increased understanding limits the unanticipated. Taking the case of Greenock Corp. V. Caledonian Ry^[3], the House of Lords condemned the implementation of the defence in Nichols v. Marsland^[4]. The corporation designed a concrete paddling pool in the bed of the stream for kids and they had to adjust the direction of the stream and block the normal flow of the river to do so.

The creek overflowed at the pond due to a rainfall of exceptional aggression and a significant amount of water that would inevitably have been ordinarily borne out by the stream, spilt down a public lane, into the town and causing damage to the property of the claimant.

It was not an Act of God, the House of Lords held, and the company was responsible. It was their responsibility to work to keep owners or tenants as protected from injuries as they would have been if nature had not been messed with at the lower level.

Similar factors applied to an unusually high wind in Cushing v. Walker & Sons^[5] where Hallett J. gave the verdict. The wind must not only be extremely strong before the wind can be an Act of God but must be of such extraordinary intensity that no one can possibly be able to predict or provide against it and exceptional high tide in Greenwood Tileries v. Clapson where Branson J. gave judgement.^[6]

To recognise an occurrence as an Act of God, the following requirements have been prescribed in Transco PLC v. Stockport Metropolitan Borough Council[7].

• Events with no involvement of any human agency.
• Events against which it is not realistically possible to guard against.
• Events that occur exclusively and directly due to natural causes.
• Events that could not have been prevented by any amount of prudence, planning, and care.

V. Elements of Act of God

Natural Causes

An act of God is an unnatural, unusual and unintended expression of nature’s powers, or misfortune or tragedy arising out of inevitable necessity. Fair human foresight and care will not deter an act of God.

The consequence of ordinary causes may be foreseen by the exercise of human treatment and prevented. The fact that rain leaks into a faulty roof, for example, is predictable for an average individual. Failure to take the required steps constitutes negligence in the case of foreseeable causes, and a person involved in the accident may be entitled to liability.

Hence an act of God is so exceptional and incapable of human agency that the repercussions cannot be prevented with fair treatment. In those situations, however, the injured party has no right to compensation.

An Occurrence Not Reasonably Foreseeable

The central and primary feature of an act of God is the existence of an unforeseeable occurrence. For this purpose, the person that sustained the injuries is entitled to liability if the damage or harm was incurred by a possible accident that should have been avoided. The harm incurred by an accidental and uncontrollable natural disaster, though is not compensable, as the foresight or prudence of man could not have stopped or avoided it[8].

In Kallu Lal v. Hemchand[9], As a result of natural rainfall of around 2.66 inches, the wall of a house collapsed. The event resulted in the death of the children of the respondent. In this case, the court held that the appellants should not plead the defence of the Act of God since that much rainfall was natural and something exceptional is required to plead this defence. They held the appellant accountable.

Moreover, the courts are of the view that the act of defence of God only occurs if the occurrence is too extraordinary and the long history of temperature fluctuations in the locality may not have predicted or planned it. Only the mind of man, i.e., documented history, is constructed by it. To show that an incident was unforeseeable, the courts could seek expert testimonies.

VI. Impossible to Prevent by Any Reasonable Defences and Absence of Human Agency which caused The Alleged Injury

This means it’s almost impossible to resist. Failure to take the required care constitutes negligence. The fact that the human factor exerted fair diligence and measures to avert the harm must be shown in an instance where a human factor was involved, even if the harm could not be stopped if the protection of God’s act must prevail.

If negligence is claimed and proven, then God’s defence of the act will fail. Whether an owner was careless in properly repairing a tree that falls on a passer-by, by the act of the principle of God, he will not be exempted from accountability.

VII. Understanding Vis Major through Legal Precedents

In the case of Nichols v. Marshland[10], The defendant has a number of lakes on his property that are artificial. Extraordinary rain that had never been seen in living memory forced the banks of the reservoirs to break and four bridges belonging to the claimant were swept away by the fleeing flood. It was held that an act of God washed the bridges of the complainant and the defendant was not responsible.

In the case of Blyth v. Birmingham Water Works Co[11] The defendants had designed water pipes that were relatively robust enough to survive extreme frost. That year there was an extremely heavy frost that caused the pipes to burst, resulting in significant damage to the property of the complainant. It was concluded that although frost is a normal phenomenon, an act of God may be traced to the event of an accidental extreme frost, thereby relieving the defendants of any and all accountability.

In Ramalinga Nadar v. Narayana Reddiar,[12] The complainant booked goods for shipment with the defendant. A gang is stealing the items, the avoidance of which was outside the defendant’s jurisdiction. It was held that the Act of God should not be told for an incident outside the defendant’s influence. It has been held that an unruly mob’s acts of aggression cannot be called an act of God.

In Glenmorgan Tea Estates Co. v. Philip Mathew,[13] A single Madras High Court judge found that the cargo was destroyed by intrusion due to rainwater rising from below, though it was tightly covered from above by tarpaulin. Hundreds of lorries, including those of the convict, were trapped by the flash flood on the highway, and the water level on the highway climbed above the tyres and up to the level of the platform that culminated in the infiltration. The court acknowledged the plea of God’s act under the circumstances and found neither incompetence nor lack of due care.

VIII. Act of God and COVID-19

The courts decide what events fall under the definition of an Act of God, but in certain cases, in recent years the courts restrict the use of this protection because technical developments in this ear limit the unpredictability of such occurrences and not because strict liability is required.

The Indian courts have not formally recognised the pandemic as an act of God in the present situation, but by reading the Supreme Court’s decision in the case of The Divisional Controller, KSRTC v. Mahadeva Shetty, one may infer that the Act of God involves any and all actions resulting from natural forces that are free from human interference, except that not all acts resulting from natural forces are free from human involvement.[14]

In related cases, in the case of Lakeman v. Pollard, where a worker quit before his shift ended due to a cholera epidemic and an action was brought against him by the mill owners on the basis that he broke his contract by not finishing his duties. In this, the Maine Supreme Court ruled that the epidemic of cholera comes within the definition of an Act of God and thus the worker should not be held accountable for the violation of his contract.[15]

IX. Conclusion

While the act of God’s defence that a criminal is isolated from responsibility for personal injuries or property harm incurred by a natural cause is seldom used if forecasts of extreme weather disasters caused by global warming are accurate, it could become more prevalent in the future. One forecast that catastrophic weather disasters such as hurricanes, tornados, and torrential rainfall will occur more often is linked to global warming. Many of these have the ability to inflict extensive personal harm and harm to property and emotional distress as a result.

As a legal principle, then the substance of an Act of God is not so much a phenomenon that is often credited to a positive action of nature’s powers, but a mechanism of nature that is not attributable to man’s act and that negative side demands emphasis.

The criteria are not whether or not the incident could realistically be predicted, but whether or not the probability of such an event could reasonably be considered by human foresight and prudence. However also in such a small way, this defence, as the defence of a stranger’s act, moves the basis of the crime from the blame for causing harm to the guilty’s inability to manage the risk. This has been criticised on the basis that the complainant must consider the possibility of an unintended escape induced by the forces of nature as he accrues the substance on his property.

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References

[1] Rylands v. Fletcher, UKHL 1, LR 3 HL 330, 1868. Available Here

[2] Nichols v. Marsland, 1876 2 Ex.D.1.

[3] Greenock Corp. V. Caledonian Ry, 1917 A.C. 556.

[4] Supra^4

[5] Cushing v. Walker & Sons, 1941 2 All E.R. 693 at 695.

[6] Greenwood Tileries v. Clapson, 1937 1 All E.R. 765 at 772.

[7] Transco PLC v Stockport Metropolitan Borough Council, [2003] UKHL 61.

[8] Kaufman, G.D., 1968. On the Meaning of “Act of God”. The Harvard Theological Review, 61(2).

[9] Kallulal And Anr. vs Hemchand And Ors, AIR 1958 MP 48.

[10] Nichols v. Marshland, (1876) 2 ExD1.

[11]Blyth v. Birmingham Water Works Co, (1856) 11 Ex Ch 781.

[12] Ramalinga Nadar v. Narayana Reddiar , AIR 1971 Ker 197.

[13] Glenmorgan Tea Estates Co. v. Philip Mathew, (2001) 3 Mad LJ 131.

[14] The Divisional Controller, KSRTC v. Mahadeva Shetty, 7 SCC 197(2003).

[15] Lakeman v. Pollard,43 Me 463 (1857)

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