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General Defence of Act of God

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. An accident is said to be inevitable! not merely when caused by "is ma#or or the act of God but also when all precautions reasonably to be re$uired have been ta%en, and the accident has occurred notwithstanding. That there is no liability in such a case seems only one aspect of the proposition that liability must be based on fault. Act of God or "is &a#or or 'orce &a#eure may be defined as circumstances which no human foresight can provide against any of which human prudence is not bound to recogni(e the possibility, and which when they do occur, therefore are calamities that do not involve the obligation of paying for the conse$uences that result from them. "is &a#or includes those conse$uences which are occasioned by elementary force of nature unconnected with the agency of man. )ommon e*amples 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 recogni(ed 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 e*clusively by the violence of nature. +hile courts have articulated varying definitions of an act of God, the cru* of the definition typically is an act of nature that is the sole pro*imate 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 recogni(e the possibility. 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 s%ill have been resisted. ,ince time immemorial, we have been witnessing a parade of natural calamities of seemingly biblical proportions: earth$ua%es, floods, hurricanes, tornadoes, wildfires, drought and a deadly tsunami. -ives are lost, properties destroyed or damaged, and emotions shattered when these forces of nature tragically stri%e. The severity of nature.s blow may come as a total shoc% and surprise both to the direct victims of the disaster and, subse$uently, to the accused tortfeasors. +hat follows this is a myriad rush of litigations, especially in heavily litigated countries li%e the /nited ,tates of America. 0efendants are $uic% to claim act of God as a defence to these lawsuits. 'or three centuries, the act of God defence has been accepted in negligence and strict liability cases. As a legal concept, act of God shows up not only as a defence, but also in discussions of duty and causation. At first glance, the act of God defence seems a simple, straight1forward concept with few nuances or intricacies. )onse$uently, all too often, many attorneys have misused the phrase 2act of God2 to mean any unfortunate act of nature. "is &a#or to afford a defence must be the pro*imate cause, the causa causans, and not merely the causa sine $uo non of the damage complained of. The mere fact that "is ma#or co e*isted with or followed on the negligence to accelerate the damage caused is no ade$uate defence. 3efore an act of God may be admitted as an e*cuse, the defendant must himself have done all he is bound to do. 4n a si*teenth century opinion, in the ,helly!s )ase best %nown for the famous property law doctrine of the rule in ,helley.s )ase, 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: 24t 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 pre#udice of any person in whom there was no laches.

5o further e*planation of the phrase, Act of God!, was provided by the court. 4n 6789, -ord &ansfield delivered a unanimous opinion in 'orward v. :ittard, 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: 4t appears from all the cases for 6;; years bac%, that there are events for which the carrier is liable independent of his contract. Again, in 'orward, the <nglish courts limited the act of God defence by e*cluding acts of man. 4n addition, the burden of proof was shifted from the plaintiff to the defendant to establish the e*istence of the act of God defence. Although the courts subse$uently split on the liability issue for common carriers whose delay sub#ected its freight to damage from an act of God, there was a consensus that liability would result if the common carriers %new that the force of nature was coming. In the 1875 case of Nichols v. arshland:

The defendant had a series of artificial la%es on his land in the construction and maintenance of which there had been no negligence. =wing 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. 4n the subse$uent case of ,mith v. 'letcher, 3aron 3ramwell followed the strict liability holding of >ylands, but dismissed the act of God defence even though the flood was e*traordinary, and they could not foresee it on the grounds that it did not affect their legal responsibility.

Greenoc! "orp. v. "aledonian #ail$a% "o.& contrasts $ith Nichols. The ?ouse of -ords cirticised the application of the defence in 5ichols v. &arshland, and four of their lordships cast doubt on the finding of facts by the #ury in that case 4n this case, the )orporation obstructed and altered the course of a stream by constructing a padding pool for children. 0ue to rainfall of e*traordinary violence which would normally have been carried away by the stream overflowed and caused damage to the plaintiff!s property. 4t was held that rainfall was not an Act of God. The ?ouse of -ords followed >ylands in holding that a person ma%ing an operation for collecting and damming up the water of a stream must so wor% as to ma%e proprietors or occupants on a lower level as secure against in#ury as they would have been had

nature not been interfered with. 5ichols was further distinguished on two bases: the escape in 5ichols was from a reservoir rather than a natural stream, and a #ury in 5ichols found the flood was due to an act of God. There had been no negligence in the construction or maintenance of the reservoirs,2 and 2the flood was so great that it could not reasonably have been anticipated!. ,milar to Greenoc% )orp. is 5itro1:hosphate @ =dam.s )hemical &onroe )o. v. -ondon @ ,t. Aatherine 0oc%s )o.BCDE, where an e*traordinarily high tide may well have constituted an act of God, but the defendant was still negligent because it built a doc% insufficiently high. As stated by -ord Fustice Fames in 5ugent v. ,mith, the accident must be due to natural causes, directly and e*clusively, and that it could not have been prevented by any amount of foresight and pains and care reasonably to be e*pected from him!. 4n the case of 3lyth v. 3irmingham +ater +or%s )o the defendants had constructed water pipes which were reasonably strong enough to withstand severe frost. There was an e*traordinarily severe frost that year causing the pipes to burst resulting in severe damage to the plaintiff!s property. 4t 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. 4n the 4ndian case of #amalin'a Nadar v. Nara%ana #eddiar the plaintiff had boo%ed goods with the defendant for transportation. The goods were looted by a mob, the prevention of which was beyond control of defendant. 4t was held that every event beyond control of the defendant cannot be said act of God. 4t was held that the destructive acts of an unruly mob cannot be considered an Act of God. 4n the case of F @ F &a%in -td .v -ondon and 5orth <astern >ailway )o., 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 emban%ment. As the result of a violent storm the emban%ment collapsed and a great $uantity 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.

A"T () G(D AND N*G+IG*N"* Act of God, in law, is an accident caused by the operation of e*traordinary natural force. The effect of ordinary natural causes Ge.g., that rain will lea% through a defective roofH may be foreseen and avoided by the e*ercise of human careI failure to ta%e the necessary precautions constitutes negligence. 5egligence, in law, especially tort law, is the breach of an obligation GdutyH to act with care, or the failure to act as a reasonable and prudent person would under similar circumstances. 3oth these defences are based on reasonable foreseeability. 4n terms of foreseeability, the $uestion is not whether a similar event has occurred before, but whether the ris% that this particular mishap may occur is foreseeable. Thus, a flood, earth$ua%e, hurricane, or other natural force need not have previously struc% a particular location for negligence to e*ist. -iability may still e*ist if reasonable design, construction, operation, inspection, or maintenance.

'or a plaintiff to recover damages, this action or failure must be the 2pro*imate cause2 of an in#ury, and actual loss must occur. 4n cases of #oint causation, where both human negligence and act of God have a role to play, the traditional sine $ua non G2but for2H, substantial factor, or legal causation tests apply. 4f the act of God is so overwhelming that its own force produces the in#ury independent of the defendant.s negligence, then the defendant will not be liable. 4f the damages suffered are incurred solely due to natural causes without any %nown fault, there is no liability because of the act of God. There are two ways of viewing this situation. The act of God either supersedes the defendant.s negligence, or the defendant.s negligent act is not a cause in fact of the in#ury. 4n either case, the defendant.s act did not cause the damage since the in#ury would have occurred anyway. The party in#ured in the accident may be entitled to damages. An act of God, however, is so e*traordinary and devoid of human agency that reasonable care would not avoid the conse$uencesI hence, the in#ured party has no right to damages. Accidents caused by tornadoes, perils of the sea, e*traordinary floods, and severe ice storms are usually considered acts of God, but fires are not so considered unless they are caused by lightning.

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The relationship between these two defences is a slightly ambiguous one. Going by logic and definition, these two defences are very similar in nature. 4n fact, by definition, "is &a#orJ'orce &a#eure is considered a type of inevitable accident. ?owever, 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. ?owever, in the absence of negligence, "is &a#or appears to be a more valid claim. ?aving resulted from a severe and drastic natural catastrophe, "is &a#or easily has a wider domain. 'rom a philosophical point of view, this is a principle which ma%es God the defendant hence ma%ing the accident truly beyond human control. Au contrarie, -iability might be imposed on a party not negligent on the grounds of the ris% involved in the activity they were doing. A glaring e*ample of this is the non applicability of inevitable accident as a defence in cases of ,trict -iability as opposed to the claim of Act of God. "is &a#or as a defence depends on two thingsI i. -ac% of predictability and

ii.

-ac% of control

4f either criterion is missing, the defence fails. 3oth were solidly based for centuries on the lac% of scientific %nowledge. &an not only lac%ed the ability to predict the forces of nature, but also the ability to guard against, control, or otherwise minimi(e their impacts. ,cience has advanced to the point where we can understand many forces of nature, such as precipitation and flooding. ?istorically, we %now which areas have been sub#ected to specific forces of nature. ,cientifically, we can predict the areas which may be sub#ected to such forces. At first glance, the act of God defence should continue to play a role in strict liability cases. :art of the underlying purpose of the act of God doctrine was to ameliorate strict liability. 4n strict liability a number of e*ceptions have evolved. +hether a particular occurrence amounts to an Act of God is a $uestion of fact, but the ambit of this defence is somewhat restricted. 4ncreased %nowledge seems to limit the unpredictable.

5atural ha(ards are no longer a mystery to us. ?ence, the applicability of the act of God defence has shrun% in inverse proportion to rapidly e*panding concepts of foreseeability. )onversely, environmental changes at the global level have left some scope for "is &a#or as a defence. /nforeseen disasters li%e the Fuly 2K, 2;;9 floods in &umbai or the devastating Tsunami on 2K 0ecember 2;;D, which was the result of severe earth$ua%e with its epicentre at 4ndonesia 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. ,uch natural catastrophe has left some scope for the use of Act of God as a defence.