ACT OF GOD AS A DEFENCE UNDER LAW OF TORTS


Author: Vanisha Mishra, Institute of Law Nirma University







A. INTRODUCTION

Act of God refers to extraordinary circumstances which are beyond the capacity of human beings and no amount of due care could have avoided such happenings. These situations are unusual and thus, cannot be anticipated by any prudent man. It is also known as Vis Major (in Latin) which means an irresistible power or superior force of nature, for example, sudden thunderstorm, earthquake, landslides, etc.

However, what differentiates act of God from an inevitable accident is the ultimate agency involved in the causation of the happening. In 'Act of God', no human agency is responsible for the incident, instead, independent forces of nature results into such happening. These forces of nature can neither be controlled by the humans nor can they be anticipated.

According to Salmond, 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.


For example- X built a reservoir in a desert region to ensure proper supply of water during dry days. However, an unusually heavy rain broke the reservoir and flooded the neighbour's premises. Here, the flooding caused was due to the unusually heavy rains (natural force) which could not be anticipated by X (or any prudent person).


B. ESSENTIAL ELEMENTS FOR PROVING DEFENCE

Interestingly, the Act of God serves as one of the defences against civil liability suits, under the Law of Torts. Thus, a person can use this defence to escape the liability, by claiming that the damage caused to the plaintiff was not in the due course of happening and that such incident could not have been guarded against despite the sufficient amount of care taken and as a result of extraordinary natural forces.


There are a few essential elements of proving this defence in court


1. Natural Forces

There’s a fine line which separates inevitable accident from Act of God, i.e., the incident should be a direct result of forces of nature. The extraordinary circumstances created should be of natural origin and not a remote human cause. Thus, an act of god means, devoid of any human interference.

There can be situations where the accident caused was by the forces of nature, however, there was substantial negligence on the part of the defendant too. E.g.- Faulty construction of the reservoir, struck by unusually heavy rains leading to flooding of neighbour’s premises. In these conditions, though the natural force was uncontrollable, however, the defendant can not take the defence of Act of God due to the presence of negligence on his part.

Thus, an incident which is caused due to the forces of nature, exclusively without human intervention comes under the defence of the Act of God.


2. Unforeseeability

The incident caused should not be expected or foreseeable. Generally, this happens in the cases of negligence, where the harm caused is foreseeable or predictable due to the lack of duty of care/ maintenance. However, in some cases, the harm can not be anticipated. Such events are sudden and thus, far from the anticipation of a prudent man. This component is essential as it reduces the role of the defendant in the event, and thus tries to shift liability from the defendant’s part.


C. LANDMARK CASES-


Case 1) Carstairs v Taylor (1871)

Facts:

· There was a warehouse, owned by the defendant.

· The plaintiff stored rice on the ground floor which was leased from the defendant.

· The defendant stored cotton on the upper floor.

· A rat gnawed through a gutter box draining water from the roof of the warehouse.

· Furthermore, due to heavy rainfall, the roof started leaking.

· The seeped water destroyed rice of the plaintiff.


Elements-

· Natural cause:

The event happened due to the forces of nature i.e., rain and also because of the rat which gnawed through the drainage.

· Unforeseeable:

The event of a rat gnawing the drainage was quite unforeseeable and despite due precautions, it couldn’t have been avoided. Also, the sequence of events in itself was so remote to be anticipated i.e., gnawing by rat and heavy rains at the same time.

Judgement –

The defendant was not liable. The claimant had not brought the water onto his land to accumulate it. The heavy rain and actions of the rat were classed as an act of God.


Case 2) Ramalinga Nadar v. Narayana Reddiar

Facts:

· The plaintiff had booked goods with the defendant for transportation

· However, the goods were lost to mob looting

Elements-

· Natural cause:

The incident of looting was caused by the mob. That is, the human agency was involved and the disruption so caused can not be attributed as a force of nature.

· Unforeseeable:

The event of looting by the mob was quite unforeseeable and despite due precautions, it couldn’t have been avoided.


Judgement-

Though the incident was extraordinary and unforeseeable, the factor of ‘natural forces’ was missing. Thus, the act of unruly mob wasn’t considered as an Act of God.


Case 3) Nichols v. Marshland

Facts:

· The defendant was the owner of the place

· The defendant created several ornamental pools, which were supplied by a natural stream

· However, unusually heavy rain led to flooding

· Neighbour’s premises also got flooded


Elements-

· Natural cause:

The flooding happened due to the forces of nature i.e., rain.


· Unforeseeable:

The event was quite unforeseeable and despite due precautions, it couldn’t have been avoided. As, heavy rain was an extraordinary situation and thus, couldn’t have been anticipated.


Judgement

The incident was considered as an Act of God and no liability was imposed on the defendant. Sir George Mellish said, “Now the jury has distinctly found, not only that there was no negligence in the construction or the maintenance of the reservoirs, but that the flood was so great that it could not reasonably have been anticipated, although, if it had been anticipated, the effect might have been prevented; and this seems to us in substance a finding that the escape of the water was owing to the act of God. However great the flood had been, if it had not been greater than floods that had happened before and might be expected to occur again, the defendant might not have made out that she was free from fault; but we think she ought not to be held liable because she did not prevent the effect of an extraordinary act of nature, which she could not anticipate.”

Conclusion

The defence of Act of God is becoming more essential, especially in today’s scenario, where the chances of natural calamities and mishaps are increasing. Thus, the need and enforcement of such defence become essential to maintain just conditions in society.


References-

1. Act of god as a defence under Tort law (legalserviceindia.com)

2. R.R.N Ramalinga Nadar v. V. Narayana Reddiar . | Kerala High Court | Judgment | Law | CaseMine

3. R.K Bangia- law of torts

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