Explore Download 0 Comment Link Embed of 20 Readcast 0inShare Public Nuisance ....................................................................................................................................... ..........................

17 What is Interference with a public right? .......................................................................................................................17 DEFENCES TO INTENTIONAL TORTS .............................................................................18 Necessity .................................................................................................................................................................... ....18SelfDefence/Defence of another ...................................................................................................................... .............18Self Help and Recaption ................................................................................................................................................2 0Consent ................................................................................................................................................... .......................20Inevitable Accident ........................................................................................................ ................................................20Illegality .................................................................................................................................................................... .....20Incapacity and Involuntariness ................................................................................................................................... ...20Mistake ............................................................................................................................................... ............................20Contributory Negligence ........................................................................................... .....................................................20 2

TRESPASS TO THE PERSON The tort of Trespass to the person is actionable per se. That is, no need to show damage or loss(However, with no loss proved, may be entitled to only nominal damages). Trespass to the personmay constitute three different types of action: Assault , Battery , or False Imprisonment .Where indirect consequence of Ds action, P must plead action on the case and P must show Dsact indirectly caused him or her some loss or damage, as the damage is the basis of the claim( Reynolds v Clarke ).3

Assault Intentional or NegligentDirectThreatReasonableapprehension

of some imminentphysical contactAt least a possibility of threat culminating inbattery (present capacity)Withoutlawful justification S e e p 5 4 8 I NTENTION OR N EGLIGENCE D m u s t have intention to cause P to apprehend some imminent application of unlawfulforce ( Hall v Fonceca )( Rixon v Star City ) but need not intend to carry out the battery ( Barton v Armstrong ). Recklessness could suffice ( Hall v Fonceca ). P m u s t s h o w d i r e c t t h r e a t , r e a s o n a b l e a p p r e h e n s i o n , p o s s i b i l i t y o f c u l m i n a t i o n ( p a r t o f reasonableness?). Once this proved, onus shifts to D to show lack of intention, or some lawful justification. If D cannot prove this, assault is actionable per se. D IRECT T HREAT Directness Threat must be a direct result of Ds actions ( Scott v Shepherd ). Courtstake broad approach to issue of directness (squib example Scott v Shepherd ) T h e threat may consist of words, actions, or a combination of both look at the wholeof Ps actions taken together ( Stephens v Myers ) Telephoned threats may be an assault depending on circumstances ( Barton v Armstrong calls made in early morning in atmosphere of suspense, calculated to instill fear). In R v Ireland, held that silent phone calls could amount to assault where effect is the instilling of fear in recipient. Conditional threats can constitute assault eg pointing a knife at s o m e o n e a n d threatening to stab them if they move ( Police v Greaves ). However, some conditions, if notcapable of being fulfilled, are no assault at all (If it were not assize time, I would not take suchlanguage from you (IF said when IS assize time) Tuberville v Savage ). R EASONABLE

APPREHENSION OF IMMINENT PHYSICAL CONTACT Apprehension of imminent harmful or offensive (offensive means u n w a n t e d ) p h y s i c a l contact ( Rixon v Star City ). Imminent may include a continuing threat which operates on themind of P ( Zanker v Vartokas ) P must have actual knowledge of the threat (Ps apprehension is t h e g i s t o f t h e a c t i o n a person who is asleep or unconscious cannot be assaulted) P need not be fearful ( Brady vSchatzel ) Objective test (reasonableness) Threat must be sufficient to be a b l e t o r a i s e apprehension in mind of reasonable person. HOWEVER, exception to this rule is D is aware of the particular vulnerability/timidity of P ( MacPherson v Beath ) P OSSIBILITY OF CULMINATION IN B ATTERY The threat cannot constitute assault unless at least some means of carrying it out ( Stephens v Myers ) W ITHOUT L AWFUL J USTIFICATION 4

Battery Intentional or NegligentDirectActc a u s i n g b o d i l y contact withP (i) Without Psconsent, or (ii) not withinbroad generalexception S e e p I t i s p o s s i b l e 4 4 h a v e

5 t o

Assault which does not culminate in Battery , or to have a Battery which occurs without a preceding Assault (struck from behind without warning Gambriell vCaparelli ) I NTENTIONAL OR N EGLIGENT -O NUS OF PROVING F AULT Fault is generally assumed P has onus of proving facts of direct act causing bodily contact.( McHale v Watson ). Onus then falls on D to disprove fault. However, an exception exists fortrespass for injury on the highway . In such cases, the onus lies on P to prove either intention or negligence ( Venning v Chin ). D IRECT ACT M u s t b e a n act of D, rather than passivity such as standing in doorway ( Innes v Wylie ) B o d i l y contact must flow directly from act of D ( Reynolds v Clarke ). Otherwise, tryaction on the case for wilful injury (see below) C AUSATION P must prove D caused trespass of which P complains ( Platt v Nutt P unable to discharge onus of proving injuries arose directly as a result of Ps actions rather than her own independent action inraising her hand to stop a glass door being slammed shut by D)

B ODILY CONTACT WITH P B o d i l y contact does not have to consist of D touching P could be such things asspitting, ( Cotesworth case), or using an instrument (police dog nudging genitals may be battery by dog handler ( Darby v DPP ) W ITHOUT CONSENT OR NOT WITHIN B ROAD G ENERAL E XCEPTION P h y s i c a l c o n d u c t w h i c h i s generally acceptable in ordinary conduct of daily life doesnot constitute battery ( Rixon v Star City Pty Ltd ) Consent may be express, or may be inferred from the circumstances (eg getting oncrowded bus). Inferred consent may also be viewed as a general exception to the requirementfor consent where type of touching falls within physical contact which is generally acceptablein the ordinary conduct of everyday life( Collins v Wilcock ) E v e n w h e r e consent can be implied to bodily contact, this will not necessarily cover alltypes of contact a player participating in contact sport may be implied as consenting to suchcontact as is permitted within the rules, and even to contact occurring as common infringementsof those rules not however consenting to physical violence where opposing playing intends5

bodily harm, or knows or ought to know such harm is likely result of action. ( Giumelli v Johnston ) Onus of proof of consent for medical treatment will lie on D ( Marions case

) False Imprisonment I n t e n t i o n a l D i r e c t A c t T o t a l l y d e p r i v e s P of hisor her liberty***Without lawful justification*** S e e p 5 5 0 Imprisonment is a direct act of D which totally deprives P of his or her liberty. Falseimprisonment is where this imprisonment occurs without lawful justification ***Burden of Proof *** - P has burden to prove the imprisonment . P need not showimprisonment was not lawfully justified. ( Carnegie v Victoria ). D may escape liability (has adefence) if can meet burden of proving lawful justification for the imprisonment. T OTALLY D EPRIVES P OF HIS OR HER LIBERTY Deprivation of liberty must be total (refusing to allow someone to cross a bridge notfalse imprisonment as can cross on other side, or retreat from it ( Bird v Jones ). Q u e s t i o n o f w h e t h e r f a l s e i m p r i s o n m e n t i f P consents to restraint on liberty (eg conditional entry , pay a sum of money to leave Balmain New Ferry v Robertson ). C a n b e i m p r i s o n m e n t , n o m a t t e r h o w s h o r t a t i m e ( Bird v Jones ) Can be false imprisonment even where means of escape available, i f m e a n s o f e s c a p e i s unreasonable eg risk to life and limb ( McFadzean v CFMEU ) Possible to be falsely imprisoned even if P was not aware of it at time ( Murray vMinistry of Defence

). N o t f a l s e l y i m p r i s o n e d i f P r e m a i n s i n p l a c e f o r o w n r e a s o n s , k n o w i n g o f b u t uninfluenced by actions of another ( McFadzean v CFMEU ) May be imprisoned without being physically restrained P k e p t i n c u s t o d y w h i l s t i n transit to court turns out not person for whom warrant was issued ( Symes v Mahon ). Where noapplication of physical means of restraint, must be evidence of complete submission to controlof D by P(showing reasonable belief of no reasonable means of escape) ( Symes v Mahon ). W h e r e v o l u n t a r y c o m p l i a n c e w i t h p o l i c e r e q u e s t t o a t t e n d s t a t i o n o r s o m e o t h e r p l a c e may not be false imprisonment ( Myer Stores v Soo, McFadzean v CFMEU ) W ITHOUT L AWFUL J USTIFICATION Imprisonment of convicted criminal for proper term of sentence is l a w f u l , b u t d e t a i n i n g beyond end of sentence may become false imprisonment ( Cowell v Corrective Services ). F a l s e i m p r i s o n m e n t i f p u t i n g a o l b y c o u r t o r d e r i f n o p o w e r v e s t e d i n c o u r t t o m a k e such order ( Spautz v Butterworth ), or to arrest someone without statutory authority to do so ( Cthv Graves ) or without warrant or explanation ( NSW v Riley ).6

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Inevitable Accident and Act of God as defenses in Tort Law

Jul 22, 2009

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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 tortuous 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[1]:

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.

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.[2] 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[3].

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[4]. 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[5].

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 proofin 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[6]. 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[7], 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 [8], 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[9].

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[10]. Property damage cases also involved destruction by fire. In Tucker v. Smith[11] (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[12] (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[13]. 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[14] (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[15] 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[16], 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[17] 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[18]" In the absence of negligence, the plaintiff could not recover damages. In the case ofBrown v. Kendal[19], the plaintiff's 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 ipsaloquitor, for that merely raises a prima facie case[20]. STRICT LIABILITY - Rule in Rylands v. Fletcher The doctrine of strict liability has been widely extended to activities considered abnormally dangerous or ultra hazardous. We essentially adopt Rylands v. Fletcher[21] in imposing liability for ultra hazardous activities. Such activities necessarily involve a risk of serious harm to others, cannot be eliminated by the exercise of utmost care, and are not a matter of common usage. In theory, strict liability does not depend upon such factors as intent, recklessness, knowledge, negligence, moral blameworthiness, or any other degree of culpability. Nor does it depend upon the degree of care that defendant exercised or failed to exercise. Rather, liability is based simply upon the risks involved. The judgment of Lord Blackburn, approved by the House of Lords in the famous case of Rylands v. Fletcher[22] itself recognized that liability was not absolute being subject to certain exceptions. Lord Blackburn casually stated: "[Defendant] can excuse himself by showing that the escape was owing to the plaintiff's default; or perhaps that the escape was the consequence of vis major, or the act of God." Hence, he made it a part of the rule. If an animal has caused some kind of harm, and the aggrieved party seeks to sue the keeper of that animal for compensation for that harm, it seems that the fact that the animal acted the way it did because of the malicious act of the stranger or an Act of God will afford no defence to the plaintiff's claim. Consequently, the potential liability of the keeper of a dangerous animal is wider than the potential of the keeper of an inanimate dangerous thing[23]. Inevitable accident in any form is no defence in strict liability. As in Rylands v. Fletcher, the defendant is liable notwithstanding that he has taken reasonable care, it can avail him nothing to prove inevitable accident and the same is true in those cases where the liability for nuisance is strict[24]. It therefore seems that the conception of inevitable accident has no longer ay useful function and it is doubtful whether much advantage is gained by the continued use of the phrase, which anyway seems to have dropped out of use. Further, inevitable accident in any form is no defence to a claim based on the rule of strict liability as laid down in M C Mehta v. Union of India[25], which is not subjected to any exception. 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[26]. 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[27]. 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 theShelly's Case best known for the famous property law doctrine of the rule in Shelley's Case[28], 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:
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"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[29], 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[30], 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 Forwardv. Pittard[31], 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[32], 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.[33], 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.[34], 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 inNugent v. Smith[35], 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[36] 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[37] 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.[38], 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 AND NEGLIGENCE Act of God, in law, is an accident caused by the operation of extraordinary natural force. The effect of ordinary natural causes (e.g., that rain will leak through a defective roof) may be foreseen and avoided by the exercise of human care; failure to take the necessary precautions constitutes 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 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.

PRESENT DAY POSITION OF THE DEFENSES

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. [1]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) [2] Greencock Corporation v. Caleodonian Railway Co., (1917) AC 556 [3] M N Shukla, The Law of Torts,(Central Law Agency, Allahbad, 16th Ed 1998) [4] American Jurisprudence, Second Edition [5] Margaret Brazier and John Murphy, Street on Torts, (Butterworths, London Edinburgh Dublin, 10th Ed., 1999) [6] Fowler v. Lanning (1959) 1 All ER 290 [7] 43 Emory L.J. 575, Pg (610) [8] Hob. 134, 80 Eng. Rep. 284 (K.B. 1616). C.F. 43 Emory L.J. 575, Pg (591) [9] 43 Emory L.J. 575, Pg (590) [10] Clerk and Lindsell, Clerk & Lindsell on Torts, (Sweet & Maxwell, London, 17th Ed., 1999) [11] 43 Emory L.J. 575, Pg (611) [12] 43 Emory L.J. 575, Pg (611) [13] 43 Emory L.J. 575, Pg (635) [14] 43 Emory L.J. 575, Pg (641) [15] (1872) 15 Wallace 524 [16] (1875) LR 10 Ex 261, 267 [17] (1932) 146 LT 391 (392) [18] PER LORD DUNEDIN in Fardon v. Harcourt-Rivington, (1932) 146 LT 391 (392) [19] (1859) 6 Cussing 292 [20] Clerk and Lindsell, Clerk & Lindsell on Torts, (Sweet & Maxwell, London, 17th Ed., 1999) [21] (1868) LR 3 HL 330 [22] Supra

[23] Clerk and Lindsell, Clerk & Lindsell on Torts, (Sweet & Maxwell, London, 17th Ed., 1999) [24] Margaret Brazier and John Murphy, Street on Torts, (Butterworths, London Edinburgh Dublin, 10th Ed., 1999) [25] (1987) 1 SCC 395 [26] Nugent v. Smith Infra 21 , Vithaldas v. Municipal Commissionar of Bombay, (1902) 4 Bom LR 914 [27] Slater v. Worthington's Cash Stores (1941) 1 KB 488 [28] Rule deals with remainders in the transfer of real property by deed [29] 92 Eng.Rep 107 (1703). [30] Raym. 220. 1 Vent. 190, 238 [31] (1785) 1 TR 27 [32] (1875) LR 10 Ex 255 [33] (1917) AC 556 (HL) [34] (1878) 9 Ch D 5 [35] (1876) 1 CPD 423,435 [36] (1856) H Ex. 781 [37] AIR 1971 Kerala 197 [38]1 All ER 362 [39] AIR 1997 Orissa 109 [40] WINFIELD and JOLOWICZ, Tort, 18th edition, p.718
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Private Nuisance
DEFINITION
Private nuisance is a continuous, unlawful and indirect interference with the use or enjoyment of land, or of some right over or in connection with it.

REQUIREMENTS
1. CONTINUOUS INTERFERENCE There must be a continuous interference over a period of time with the claimant's use or enjoyment of land. De Keyser's Royal Hotel v Spicer Bros Ltd (1914) 30 TLR 257. Noisy pile driving at night during temporary building works was held to be a private nuisance. There are only rare examples where a single act has been held to amount to a private nuisance: Crown River Cruises v Kimbolton Fireworks [1996] 2 Lloyd's Rep 533. It was held that a firework display constituted a nuisance when it was inevitable that for 15-20 minutes debris of a flammable nature would fall upon nearby property, thereby damaging the property in the ensuing fire.

2. UNLAWFUL INTERFERENCE/UNREASONABLENESS
The claimant must prove that the defendant's conduct was unreasonable, thereby making it unlawful. The rule is sic utere tuo ut alienum non laedas (So use your own property as not to injure your neighbour's). As to impairment of the enjoyment of land, the governing principle is that of reasonable user - the principle of give and take as between neighbouring occupiers of land. The court will take the following factors into account in assessing the reasonableness or otherwise of the defendant's use of land: The locality It was stated in Sturges v Bridgman (1879) 11 Ch D 852 that: "What would be a nuisance in Belgravia Square would not necessarily be so in Bermondsey."

Sensitivity of the claimant The standard of tolerance is that of the 'normal' neighbour. Therefore, abnormally sensitive plaintiffs are unlikely to succeed in their claims for private nuisance. Contrast: Robinson v Kilvert (1889) 41 Ch D 88. The P's claim was for damage to abnormally sensitive paper stored in a cellar which was affected by heat from adjoining premises. The claim failed because ordinary paper would not have been affected by the temperature. McKinnon Industries v Walker [1951] 3 DLR 577. Fumes from the D's factory damaged delicate orchids. As the fumes would have damaged flowers of ordinary sensitivity there was a nuisance.

The utility of the defendant's conduct It will be unlikely for an activity to amount to a nuisance if it is useful for the community as a whole taking into account all the surrounding circumstances, such as locality and the duration of the activities. Contrast: Harrison v Southwark Water Co [1891] 2 Ch D 409 - building work carried out at reasonable times of the day did not amount to a nuisance. Adams v Ursell [1913] 1 Ch D 269 - a fried-fish shop was a nuisance in the residential part of a street. An injunction would not cause hardship to the D and to the poor people who were his customers. Malice It is not necessary to establish malicious behaviour on the part of the defendant but it may be regarded as evidence of unreasonableness. Contrast: Christie v Davey [1893] 1 Ch D 316. The P had been giving music lessons in his semidetached house for several years. The D, irritated by the noise, banged on the walls, shouted, blew whistles and beat tin trays with the malicious intention of annoying his neighbour and spoiling the music lessons. An injunction was granted to restrain the D's behaviour. Bradford Corporation v Pickles [1895] AC 587. The P deliberately diverted water flowing through his land, away from his neighbour's property. The P intended to force them to buy his land at an inflated price. It was held that he was committing no legal wrong because noone has a right to uninterrupted supplies of water which percolates through from adjoining property.

Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468. The D, motivated by pure spite, deliberately fired guns near the boundary of P's land in order to scare the P's silver foxes during breeding-time. Held to be a nuisance following Christie v Davey.

The state of the defendant's land An occupier must take such steps as are reasonable to prevent or minimise dangers to adjoining land from natural hazards on his land. Leakey v National Trust [1980] QB 485. The NT owned land upon which there was a large mound of earth which was being gradually eroded by natural processes, and was sliding onto the P's property. It was held that an occupier must take such steps as are reasonable to prevent or minimise dangers to adjoining land from natural hazards on his land.

3. INTERFERENCE WITH THE USE OR ENJOYMENT OF LAND OR SOME RIGHT OVER OR IN CONNECTION WITH IT
The claimant must usually prove damage, ie physical damage to the land itself or property; or injury to health, such as headaches caused by noise, which prevents a person enjoying the use of their land. Case examples include: Bliss v Hall (1838) 4 Bing NC 183 - smells and fumes from candle making invading adjoining land. Solloway v Hampshire County Council (1981) 79 LGR 449 - allowing tree roots to suck moisture from adjoining soil, thereby causing subsidence. However, note the decision and points made by the House of Lords: Interference with TV reception by a tall building could not amount to an actionable public or private nuisance, on the basis that this was not an interference with use or enjoyment of land. "The general principle is that at common law anyone may build whatever he likes upon his land. If the effect is to interfere with the light, air or view of his neighbour, that is his misfortune. The owner's right to build can be restrained only by covenant or the acquisition (by grant or prescription) of an easement of light or air for the benefit of windows or apertures on adjoining land." (per Lord Hoffman at p17; see also Lord Goff at p2 and Lord Hope at p27.)

WHO MAY SUE

Only a person who has a proprietary interest in the land affected by the nuisance will succeed in a claim, eg as owner or reversioner, or be in exclusive possession or occupation of it as tenant or under a licence to occupy (but there may be anomalous exceptions, per Lord Hope, Hunter v Canary Wharf). Malone v Laskey [1907] 2 KB 141. The P was using a toilet. The lavatory cistern fell on her head because of vibrations from machinery on adjoining property. Her claim failed as she was merely the wife of a mere licensee, and had no proprietary interest herself in the land. However, today she would be able to claim in negligence (per Lords Goff and Hoffman in Hunter v Canary Wharf). This rule was upheld by the House of Lords in Hunter v Canary Wharf over-ruling the Court of Appeal decision in Khorasandjian v Bush. However, the wife of a homeowner would be able to sue as she has a beneficial interest in the matrimonial home, per Lord Hoffman, Hunter v Canary Wharf. Note that jus tertii (right of a third person) is not a defence to an action of nuisance. A person who is in exclusive possession of land may sue even though he cannot prove title to it (Foster v Warblington UDC [1906] 1 KB 648, discussed by Lord Goff in Hunter v Canary Wharf).

WHO MAY BE SUED

Creator of the nuisance Any person who creates the nuisance can be sued, whether or not that person is the occupier of the land at the time of the action. Occupiers Occupiers who adopt and continue to allow nuisances on their land may also be liable, even if such nuisances were created by predecessors in title, trespassers or third parties.

Landlord A landlord may be liable for nuisances emanating from land, eg if the landlord had knowledge of the nuisance before letting, or where the landlord reserved the right to enter and repair the premises.

DEFENCES
Prescription If the nuisance has been continued for 20 years without interruption the defendant will not liable if s/he pleads a prescriptive right to the nuisance. See Sturges v Bridgman (1879) 11 Ch D 852 - Doctor built consulting room next to a confectioner's workshop which had been operating for over 20 years; court held that the prescriptive right began on the use of the room. Statutory authority There will be a defence to private nuisance if it can be shown that the activities complained of by the claimant were authorised (expressly or impliedly) by a statute (Lord Dunedin in Manchester Corporation v Farnworth [1930] AC 171).

Coming to the nuisance no defence It is no defence to prove that the claimant came to the nuisance: Bliss v Hall (1838) 4 Bing NC 183, where P moved next to a candle-making factory which had been operating for three years; followed by the Court of Appeal in the cricket ball case.

REMEDIES
Injunction An injunction will only be granted at the discretion of the court. Damages In cases of nuisance by encroachment or damage to land, the measure of damages will be the diminution in the value of land; in cases of interference with enjoyment the measure will be the reduction in amenity value (per Lord Lloyd in Hunter v Canary Wharf). The cost of repairs or other remedial works is also recoverable (per Lord Hope). For the date of assessment see Alcoa Minerals v Broderick [2000] 3 WLR 23. Abatement This is the remedy of self-help, eg removing over-hanging tree branches, which are a nuisance. For further details, see Michael A. Jones, Textbook on Torts, p339

PUBLIC NUISANCE

OUTLINE

Public nuisance is an act "which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects". It is primarily a crime, prosecuted by the Attorney-General. An example would be unreasonable use and obstruction of the highway. It is only actionable as a tort if the claimant has suffered damage over and above other members of the public. Defences include statutory authority and act of a stranger, but not prescription. Remedies include damages and an injunction to restrain further repetition of acts of public nuisance. For a detailed comparison of public and private nuisance see Winfield & Jolowicz, p492-4 and p496

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