Act of God / Vis major as defence for tortious liability

Act of God /Vis major as a defence of tortious liability

Introduction 

In an action for a tort , the defendant may avoid his liability by taking the plea of some defence. They constitute justifications or grounds of immunity from liability to an action in tort .

In other words they can be regarded as the rules of immunity which limit the rules of liability”(Pollock.) They are the classes of wrongs which stand outside the sphere of tort. These defence are based on the grounds of public policy. One such defence is the Act of God.

Act of God : Vis major {meaning & definition}

• An act of God is an inevitable accident with the difference that in act of God the resulting loss arises from the loss of natural forces; like exceptionally heavy rainfall.
• An act of God as known to law is an unusual and extraordinary manifestation of forces of nature that could not under normal circumstances have been reasonably anticipated or expected.
• In P.K Kalasami Nadar vs Polluswami Mudaliar :“An act of God will be an extraordinary occurrence due to natural causes which is not the result of human intervention”
• An act of God cannot be avoided by human care, skill, foresight or reasonable measures.

Definition: Pallock defines Act of God “An operation of natural forces so unexpected to anticipate it”. Salmond stated : 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.”

Essentials: Two important essentials are needed for the defence of act of God

• There must be working of natural forces (like exceptionally heavy rainfall, storms, tempsets, volcanic eruptions.
• The occurrence must be exceptional and not one which could be anticipated and fairly guarded against.

Case Laws:

Nichols v. Marshland

In the case of Nichols v. Marshland ,in this case the defendant had a number of artificial lakes on his land. Exceptionally heavy rainfall 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 destroyed by an act of God and the defendant was not liable.

Blyth v. Birmingham Water Works Co

In the case of Blyth v. Birmingham Water Works Co, Here the defendants had constructed water pipes which were fairly strong enough to withstand severe frost. There was an unexpected 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 referred to an act of God, thus tl relieving the defendants of any liability.

Ramalinga Nadar v. Narayana Reddiar

In 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 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.

Act of God and strict liability:

Act of God was recognised by Blackburn J, in Rylands vs Fletcher: The facts of this case was that B“ the owner of a mill employed independent competent contractors to construct a reservoir to provide water for his mill. In course of work the contractors came across some open shafts and passages on B’s land. They communicate with the mines of A , neighbour of B. The contractors did not block the shafts when the reservoir was filled, the water burst from the old shafts and flooded A’s mine.

Here Blackburn j ruled that , the defendant can excuse himself by showing that the escape was due to the plaintiff’s default or perhaps the escape was consequence of Vis major or act of God .

Act of God and negligence:

• An act of God is an accident caused by the working of extraordinary natural forces whereas the effect of ordinary natural causes, such as a water leak through the roof or ceiling may be foreseen and may also be avoided by taking certain reasonable actions, failure of these actions i.e. the precautions that are necessary contribute to negligence.
• Negligence is simply the breach of an obligation or a duty or a responsibility to act with care towards something, or, it is the failure to act as a reasonable and a prudent person would act under the same or similar circumstances.

Both of the above mentioned defences are based on the reasonable foreseeability, here the question is not whether a similar event has occurred before or not, but whether the risk that this mishap may occur is foreseeable or not.

Conclusion:

Hence it can be concluded that in law, the essence of act of God is not so much a phenomenon which is sometimes attributed to a positive intervention of the forces of nature but a process of nature not due to the act of man and it is this negative side which deserves emphasis. The criterion is not whether or no the event could be reasonably anticipated but whether human foresight and prudence could reasonably recognise the possibility of such an event .even in such limited form this defence ,like the defence of act of stranger shifts the basis of tort from responsibility for the creation of culpable failure to control that risk.

Author: Harshita Swami,
Guwahati University ,B.A LLB 9th sem