Chanakya National Law University

LAW OF TORT

Submitted by :- Akash shankar Roll num :- 908 (BA.LL.B) 1st sem(2013-2018)

ACT OF GOD AS A DEFENCE

Introduction of tort:
The law of tort is a concept that has been evolving through the ages. Law has been the matter 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 defenses are used to evict those innocent citizens from tortuous liability who have been unfairly implicated with claims imposes on them. These defences were formulated from time to time to keep up with the very basis of imposition to tortuous liability on an individual it means creating a sense of justice Defenses to tort are many namely Necessity , vis major /force majeure /Act of god. Inevitable accident, plaintiffs 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.

Act of God
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. The American jurisprudence of god as:- An event may be considered act of god when it is occasioned exclusively by the violence of nature while court 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. ESCAPE : Act of God was also considered to be a defence to an action under the rule

in Rylands v. Fletcher by Blackburn, J. himself.1Act of God has been defined as :

1. 1866) L.R. 1 Ex 265,280.

Circumstances which no human foresight can provide against , and of which human prudence is not bound to recognized the possibility.1

If the escape has been unforeseen and of supernatural forces without any human intervention, the defence of act of God can be pleaded. The case of Nichols v. Marsland,2 serves as a good illustration where the defence was successfully pleaded. In that case, the defendant created artificial lakes on his land by damming up a in the human memory, by which the stream and the lakes, which were sufficient strong for an ordinary rainfall ere sufficient strong, geve way and the rush of water down the stream washed away the plaintiffs four bridges. The plaintiff brought an action to recover damages for the defendants. Its was held that the defendants were not liable under the rule in Rylands v. Fletcher because the accident in this case had been caused by an act of god. An act of god as an exception to the rule of strict liability is held not available in cases of death due to electrocution as a result of falling of high tension electric wire from its pole due to lightning stroke or storm.

1. Tennent v. Earl of Glasgow, (1864) 2 M (H.L.) 22, 26-27 2. (1876) 2 Ex. D. 1 : Also see Greenoch Corporatin v. Caledonian Ry.,(1917) A.C. 556; (Att. Gen. v. Cary Bros., (1919) 35 T.L.R. 570; Slater v. Worthingtons Cash Stores, (1941) 1 K.B. 388 : (1914) 3 All E.R. 28

In case S.K. Shangrung Lamkang v. State of Manipur,1 the Gauhati High Court explained that since the management of supply of electricity was a hazardous or inherently dangerous activity, when harm was caused to anyone on account of any cause in the operation of the activity, the respondents, who were responsible in respect to the activity, the respondents, who were responsible in respect to the said activity would be strictly and absolutely liable to compensate those who were harmed in the course of operation of the said activity. Such liability, the Court held, was not to be subject to any exception to the principle of strict liability under the rule in Rylands v. Fletcher, House of Lords, L.R. 3 H.L. 330 (1868). In this case, two persons died due to electrocution caused by a falling of a high tension electric wire from its pole while they were proceeding riding a scooter. The respondents contended that fall of the electric wire was due to the lightening storm resulting in breaking of a tension disc insulator and not due to negligence of any of the respondents. Holding the respondent liable the Court observed : the possibility of falling of High tension electric wire from its pole as a result of storm or lightening should have been reasonably anticipated by the respondents and as such appropriate steps should have been taken by them so that no harm was caused to when touched the fallen electric line. The risk involved in the management of supply of electricity was surely great and a high degree of care was expected of the respondents, the court said , inasmuch as they ought to have appreciated the possibility of falling of the electric wire from its pole as a result of storm or lightening. The Court relied on the Apex Courts decision in M. P. Electricity Board v. Shail Kumar 2, wherein the Honble Supreme Court observed : a person undertaking an activity involving hazardous or risky exposure of human life is liable under Law of Torts to compensate for the injury suffered by any other

1. A.I.R. 2008 S.C. 46. 2. A.I.R. 2002 S.C. 551.

person irrespective of any negligence or carelessness on the part of the manager of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known in law as strict liability. Strict liability : A person is responsible for the damage and loss caused omissions regardless of culpability. Forces of Nature. Consistent with Mansfields formulation, many courts define Acts of God as forces of nature or physical/natural phenomena. Thus, cases speak of Acts of God as events occasioned by the violence or force of nature or simply a physical force. These natural forces must be something more than simple, everyday natural events; rather, they must be extraordinary, unusual, unprecedented, unexpected, sudden, superior, and/or irresistible, though some courts state that it need not be the greatest or harshest act ever experienced. Whether or not a particular natural event warrants such an adjective is a function of such things as the intensity of the event, characteristics of the area, and climatic history.
Act of God is one arising from natural causes. Some of the well-known instances of acts of God are the storms, the tides and the volcanic eruptions. They are, in a sense, inevitable accidents beyond the control of man. What is urged in this case is that all inevitable accidents must be taken as acts of God. Matters which are not within the power of any party to prevent, is, according to learned counsel, inevitable accidents so far as he is concerned and consequently it is to be considered as acts of God. I cannot agree. Accidents may happen by reason of the play of natural forces or by intervention of human agency or by both. It may be that in either of these cases accidents may be inevitable. But it is only those acts which can be traced to natural forces and which have nothing to do with the intervention of human agency that could be said to be acts of God-Cockburn C. J.. in the leading case in Nugent v. Smith. (1876-1 CPD 423) said.

by his/her acts and

either in the whole or in part in the agency of man, whether in acts of commission or omission, of nonfeasance or of misfeasance, or in any other cause independent of the agency of natural forces. It is obvious that it would be altogether incongruous to apply the term "act of God" to the latter class of inevitable accident. It is equally clear that

storm and tempest belong to the class to which the term "act of God" is properly applicable."

CASE SUMMERY
Issue 1: Is an absolute duty imposed on a landowner who lawfully brings something onto his land which, while harmless while it remains there, will naturally cause damage if it escapes? Issue 2: Will a party be liable for damage caused by a thing or activity that is unduly dangerous and inappropriate in a certain place, in light of the character of the place and its surroundings? Holding and Rule 1: Yes. The law casts an absolute duty on a person who lawfully brings on his land something which though harmless while it remains there will naturally cause damage if it escapes. Ds are prima facie answerable for all the damage which is the natural consequence of its escape. The plaintiff does not have to show negligence. The defendant however can use as a defense a showing that the esc ape was Ps fault or that it was caused by a major act of God. Holding and Rule 2: Yes. Where the owner of land, without willfulness or negligence, uses his land in the ordinary manner of its use, though mischief should thereby be occasioned to his neighbor, he will not be liable in damages. But if he brings upon his land any thing which would not naturally come upon it, and which is in itself dangerous, and may become mischievous if not kept under proper control, though in so doing he may act without personal willfulness or negligence, he will be liable in damages for any mischief thereby occasioned. Disposition: Reversed, judgment for P.

Note : This result here is frequently referred to as the escaping substances doctrine. This case is the
foundation of the concept of strict liability or absolute liability.

Bibliography
1. The Law of Torts, Dr. R.K.Bangias Allahabad Law Agency , 22 Edition -2010. 2. www.doradelaw.com 1:32 IST Neil Northmore. 3. http://widenerlawreview.org/files/2010/04/01-KRISTL 4. http://www.manupatrafast.in/pers/Personalized.aspx 5. http://www.keanmiller.com/files/act_of_god_defense.pdf 6. http://lmiashadow.files.wordpress.com/2008/07/act-of-god-paper. 7. http://www.law.cornell.edu/wex/act_of_god 8. http://www.duhaime.org/LegalDictionary/A/ActofGod.aspx 9. http://indiankanoon.org/search/?formInput=act%20of%20god%20 10. http://www.articlesbase.com/law-articles/inevitable-accident-and-act-of-god-as-defenses-intort-law-1059145.html

11. http://www.brienrochelaw.com/tort-law/tort-case-law/a/act-of-god/ 12. http://www.legal-explanations.com/definitions/act-of-god.htm 13. http://www.answers.com/topic/act-of-god 14. http://e-lawresources.co.uk/cases/Nichols-v-Marsland.php 15. http://legalperspectives.blogspot.in/2010/09/act-of-god-law-revisited.html 16. http://www.insurancepanorama.com/articles/showArticles.cfm?ArticleID=49 17. http://www.lawteacher.net/tort-law/lecture-notes/rylands-v-fletcher-lecture.php 18.

The phrase 'act of God' occurs in religious texts dating back to the 13th century, specifically referring to acts that God has undertaken. The 'act of God' referred to here is that which is used in legal and insurance circles when discussing any act which is outside human control and therefore not the responsibility of any individual or corporation. The term was first used in this way in the mid-19th century. Peter Simmonds' Dictionary of Trade Products, 1858, uses the term:

Diminishing the Divine: Climate Change and the Act of God Defense
First appearing in 1581 in the famous Shelleys Case, the notion that Acts of God could provide a defense to liability took hold in the common law. While perhaps once viewed as literal intervention by God in the affairs of man,8 the notion of an Act of God evolved to mean something beyond human agency and control, of which storms, lightning, and tempests were given as prime examples.9 This notion, that climatic events like storms which are beyond the control of humans could shield a defendant from liability for the plaintiffs damages, worked its way into tort, admiralty, contract, and even modern environmental law. Even today, climatic

events10 like hurricanes, heavy rain and/or wind storms, and flooding associated with such climatic events can, under the legal and factual tests articulated in each of these areas of law, relieve a defendant of liability.