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
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.
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 defendant’s reliance on the defence of “inevitable accident” must challenge – with evidence and argument – the defendant’s 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.
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 vehicle’s headlights, the driver’s experience and his/her familiarity with the roadway, the driver’s 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 Vis Major or Force Majeure may 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
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
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 Whitelock was 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
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 Weaver v. 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 seem always 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
been driven against another vessel or vessels, or against a fixed structure. Property damage cases also involved destruction by fire. In Tucker v. 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 Ellis v. 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 inevitable accident 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
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 Gibbons court 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 declaration excused" 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 plaintiff could 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 Glycerine case, 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
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 Fardon v. 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 the car, 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.
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 the claimant. 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
, 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. Vis Major to afford a defence, must be the proximate cause, the causa
causans, and not merely the causa sine quo non of 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
do. In a sixteenth century opinion, in the Shelly's Case best known for the famous property law doctrine of the rule in Shelley's Case, 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 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. Since strict liability applied to insurers, the act of God defence existed to ameliorate an otherwise potentially draconian liability. In the case of Morse v. Slue, Judge Hale stated that the master is not chargeable in the case of pirates, storms, and the like, "but
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 Nichols v. Marsland, the defendant had a series of artificial lakes on his land in the construction and maintenance of 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
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 Rylands in 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 Nichols was from a reservoir rather than a natural stream, and a jury in Nichols found the flood was due to an act of God. 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,
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 that the destructive acts of an unruly mob cannot be considered an Act of God.
In the case of J & 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
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, Vis Major/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
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 a potential 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
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 Rylands v. 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 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.
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)
