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CHANAKYA NATIONAL LAW

UNIVERSITY

ACTUS DEI NEMINI FACIT INJURIAM

LEGAL ENGLISH

Submitted to: Submitted by:


PRATUASH KAUSHIK DEEPALI SINGH

(Faculty, Legal English) Roll No. 1408


TABLE OF CONTENTS

ACKNOWLEDGEMENT ERROR! BOOKMARK NOT DEFINED.

RESEARCH METHODOLOGY 4

CHAPTER 1: ..6

INTRODUCTION

CHAPTER 2: ......8

ACTUS DEI NEMINI FACIT INJURIUM AS A GENERAL DEFENCE

CHAPTER 3 : .11

ACTUS DEI NEMINI FACIT INJURIUM IN TORT

CHAPTER 4: .17

DIFFERENCE BETWEEN ACT OF GOD AND FORCE MAJEURE.

CHAPTER 5: ..23

ELEMENTS REQUIRED FOR ACT OF GOD


CHAPTER6:......................28

CASES RELATED TO ACT OF GOD

CHAPTER 7:31

CONCLUSIONS AND SUGGESTIONS

BIBLIOGRAPHY

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ACKNOWLEDGEMENT

Any project completed or done in isolation is unthinkable. This project, although


prepared by me, is a culmination of efforts of a lot of people. Firstly, I would like to
thank our Professor MR. PRATYUSH KAUSHIK SIR for, helping me in making the
project on ACTUS DEI NEMINI FACIT INJURIUM for his valuable suggestions towards
the making of this project.

Further to that, I would also like to express my gratitude towards our seniors who were a
lot of help for the completion of this project. The contributions made by my classmates
and friends are, definitely, worth mentioning.

I would like to express my gratitude towards the library staff for their help also. I would
also like to thank the persons interviewed by me without whose support this project
would not have been completed.

Last, but far from the least, I would express my gratitude towards the Almighty for
obvious reasons.

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RESEARCH METHODOLOGY
Method of Research
The researcher has adopted both doctrinal and non doctrinal method of research. The
researcher has made extensive use of the library at the Chanakya National Law
University and also the internet sources and interviewed many organization related with
management of stress.
Aims and objectives
The researcher aims to :-

1. To understand what is basically act of god.

2. To know the important cases regarding this maxim.

3. To understand difference between inevitable accident and act of god.

4. To know what are the conditions required for act of god.

5.To understand how act of god is general defence.

Scope and Limitations

Though the study of the ACT OF GOD is an immense project and pages can be written
over the topic but due to certain restrictions and limitations the researcher has not been
able to deal with the topic in great detail.

Sources of Data:
The following secondary sources of data have been used in the project-
1. Cases 2.Books 3 .websites
Method of Writing:
The method of writing followed in the course of this research paper is primarily
analytical.
Mode of Citation
The researcher has followed a uniform MODE of citation.

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Table of Cases

1. Nichols v. Marsland

2. Greenock Corpn. V. Caledonian Railway Co.

3. State of Mysore v. Ramachandra

4. T. Gajayalakshmi v. Secretary, PWD, Govt. of T.N.

5. Mahindra Nath Mukherjee v. Mathuradas Chaturbhuj

6. Kallulal v. Hemchand

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INTRODUCTION

Actus dei nemini facit injuriam is a Latin legal maxim. This means that an act of God does no
injury to anyone. In other words, no one is responsible for inevitable accidents. Actus dei nemini
facit injuriam is also known as Act of God. When an event is caused by the effect of nature
without interference from humans it can be called an act of God. The event foreseen cannot be
considered as act of God. If natures act was foreseeable and a persons negligence led to an
accident, the jury considers the extend of negligence before giving verdict.

An event that directly and exclusively results from the occurrence of natural causes that could
not have been prevented by the exercise of foresight or caution; an inevitable accident.

Courts have recognized various events as acts of Godtornadoes, earthquakes, death, extraordinarily
high tides, violent winds, and floods. Many insurance policies for property damage exclude from their
protection damage caused by acts of God. Act of God means an event which happens independently of
human action such as death from natural causes (Actus dei nemini facit injuriam), storm, earthquake,
tides, volcanic eruptions etc., which no human foresight or skill could reasonably be expected to
anticipate. For example, damage from a tornado or a lightning strike would be considered an act of God.
Damage would not be considered an act of God if it is caused by the proVis is a Latin word meaning any
kind of force, violence or disturbance to person or property. Vis major is an act of God. The doctrine
states that a person is absolved of liability if it was directly caused by vis major.

The Law of Tort is a developing and ever dynamic field and is a conception evolving through
centuries. This field is used with principles under which tortuous liability can be demanded.
Simultaneously, certain other principles are used, to oppose 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 defences were framed
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.
One such defence which will be discussed elaborately with cases subsequently is ACT OF GOD

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ACT OF GOD AS A GENERAL DEFENCES

In the law of contracts, an act of God may be interpreted as an implied defense under the rule
of impossibility or impracticability. If so, the promise is discharged because of unforeseen
occurrences, which were unavoidable and would result in insurmountable delay, expense, or
other material breach.
An example scenario could assume that an opera singer and a concert hall have a contract. The
singer promises to appear and perform at a certain time on a certain date. The hall promises to
have the stage and audio equipment ready for her. However, a tornado destroys the hall a month
before the concert is to take place. Of course, the hall is not responsible for the tornado. It may
be impossible for the hall to rebuild in time to keep its promise. On the other hand, it may be
possible but extraordinarily expensive to reconstruct on such short notice. The hall would argue
that the tornado was an act of God and excuses its nonperformance via impossibility or
impracticability.
In other contracts, such as indemnification, an act of God may be no excuse, and in fact may be
the central risk assumed by the promisore.g., flood insurance or crop insurancethe only
variables being the timing and extent of the damage. In many cases, failure by way of ignoring
obvious risks due to "natural phenomena" will not be sufficient to excuse performance of the
obligation, even if the events are relatively rare: e.g., the year 2000 problem in computers. Under
the Uniform Commercial Code, 2-615, failure to deliver goods sold may be excused by an "act
of God" if the absence of such act was a "basic assumption" of the contract, and the act has made
the delivery "commercially impracticable".
Recently, human activities have been claimed to be the root causes of some events until now
considered natural disasters. In particular:

water pressure in dams releasing a geological fault (earthquake in China)


geothermal injections of water provoking earthquakes (Basel, Switzerland, 2003)
drilling provoking mud volcano (Java, ongoing)
Such events are possibly threatening the legal status of Acts of God and may establish liabilities
where none existed until now.

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Argentina
In Argentina, Act of God (In Spanish: Caso Fortuito or Fuerza Mayor) is defined by Civil Code
of Argentina in the Article 514, and regulated in the article 513.
According to these articles, Act of God is the one with the following characteristics:

An act that could not have been foreseen or if it could have, an act that could not be
prevented. From these, it can be said that some acts of nature can be predicted, but if their
consequences cannot be resisted it can be considered an act of god. Also, Act of God can be
"Act of Prince", such as war.
The victim was not related directly or indirectly to the causes of the act. For example, if the
act was a fire.
The Act of God must have originated after the cause of the obligation.
The victim cannot by any means overcome the effects.
In Argentina, Act of God can be used in Civil Responsibility regarding contractual or not
contractual obligations.
United Kingdom
England and Wales
An act of God is an unforeseeable natural phenomenon. Explained by Lord Hobhouse in Transco
plc v Stockport Metropolitan Borough Council as describing an event;

(i) which involve no human agency


(ii) which is not realistically possible to guard against
(iii) which is due directly and exclusively to natural causes and
(iv) which could not have been prevented by any amount of foresight, plans, and care.

Scotland
An Act of God is described in Tennant v. Earl of Glasgow (1864 2 M (HL) 22) as:
"Circumstances which no human foresight can provide against, and 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 may result from them."

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United States of America
In the law of torts, an act of God may be asserted as a type of intervening cause, the lack of
which would have avoided the cause or diminished the result of liability (e.g., but for the
earthquake, the old, poorly constructed building would be standing). However, foreseeable
results of unforeseeable causes may still raise liability. For example, a bolt of lightning strikes a
ship carrying volatile compressed gas, resulting in the expected explosion. Liability may be
found if the carrier did not use reasonable care to protect against sparksregardless of their
origins. Similarly, strict liability could defeat a defense for an act of God where the defendant
has created the conditions under which any accident would result in harm. For example, a long-
haul truck driver takes a shortcut on a back road and the load is lost when the road is destroyed in
an unforeseen flood. Other cases find that a common carrier is not liable for the unforeseeable
forces of nature. See e.g. Memphis & Charlestown RR Co. v. Reeves, 77 U.S. 176 (1870).
A particularly interesting example is that of "rainmaker" Charles Hatfield who was hired in 1915
by the city of San Diego to fill the Morena reservoir to capacity with rainwater for $10,000. The
region was soon flooded by heavy rains, nearly bursting the reservoir's dam, killing nearly 20
people, destroying 110 bridges (leaving 2), knocking out telephoneand telegraph lines, and
causing an estimated $3.5 million in damage in total. When the city refused to pay him (he had
forgotten to sign the contract), he sued the city. The floods were ruled an act of God, excluding
him from liability but also from payment.

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Act of God (Vis Major) in Tort.

1. What is a tort?

A tort is the French equivalent of the English word wrong and of the Roman law term
delict.
Tort is derived from a Latin word tortum meaning twisted, crooked or wrong.
A tort is simply a transgression from straight or right conduct i.e. a wrong against the
world at large due to some act or failure to do one.
It governs the rights of private parties to obtain compensation from those who have
caused them injuries due to some act or failure to do one.
Tort is a wrong which begins at some act i.e. doing something wrong or omission i.e. a
failure to do something which should have been done. The act or omission leads to legal
injury to a party (the injured) and that party seeks compensation called legal damages
from the party committing the tort (the injurer).

2. Definitions of Tort proposed by various authorities.


Salmond and Hueston-

A tort is a civil wrong for which the remedy is a common law action for unliquidated
damages, and which is not exclusively the breach of a contract or the breach of a trust or
other mere equitable obligation.

Common Law Procedure Act, 1852 -

A tort is a wrong independent of contract.

Fraser-

A tort is an infringement of right in rem of a private individual giving a right of


compensation at the suit of the injured party.

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WINFIELD
Tortuous liability arises from the breach of a duty primarily fixed by law. This duty is
towards persons generally and its breach is redressable by an action for unliquidated
damages.

3. What is a defence?

The word defence bears several meanings in the tort context and a great deal of
confusion has been spawned of a general failure by courts and commentators to make
their intended meaning clear.
First, it is sometimes used to refer to any argument that persuades the court to find that
the defendant is not liable. So understood, the word defence encompasses absent
element defences. Absent element defences are denials by the defendant of an element
of the tort in which the plaintiff sues. A defendant advances an absent element defence
when, for example, he denies that he is the tortfeasor, denies that his impugned act was
voluntary, denies that he was at fault when proof of fault is required, or denies that the
plaintiff suffered damage when damage is the gist of the tort in which the plaintiff sues.

In a second and stricter sense, the word defence refers only to rules that, when
enlivened, result in a verdict for the defendant even if all of the ingredients of the tort that
the plaintiff contends was committed against him are present. A defendant invokes a
defence within this meaning of the word when he argues along the following line: Even
if I committed a tort, judgment should nevertheless be entered in my favour because of
rule so and so.
Only affirmative defences count. Affirmative defences include absolute privilege,
abuse of process, arrest, distress, honest opinion, immunity, limitation bars, necessity,
qualified privilege, recapture of land or chattels, res judicata and self-defence. A
defendant who relies on any of these rules seeks to avoid liability not by denying the
plaintiffs allegations but by going around them.

Defence according to Winfield and Jolowicz:


A claimant who fails to prove the necessary ingredients of the particular tort or torts on
which he relies will, of course, fall in his action. Even if he does prove these ingredients,
however, he may still fail if the defendant shows that he is entitled to rely upon some
specific defence. Some of these defences are peculiar to particular torts. These defences
are called specific defences. While other defences are broader in scope and can be
applied by a defendant on a more pervasive scale as a defence to various torts. These
defences are called general defences

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Types of defences to various torts:

A. SPECIFIC DEFENCES.
Certain specific defences for particular torts are:

I. Trespass- license, revocation, justification by law, trespass ab initio, re-entry,


ejectment, jus tertii, mesne profits.

II. Nuisance- coming to nuisance no defence, usefulness not in itself a defence, no


defence that is due to many.

III. Strict Liability- consent of the claimant, common benefit, act of stranger, statutory
authority, default of the claimant.

IV. Defamation- privilege.

B. GENERAL DEFENCES.
These defences applied by the defendant, only pertain to specific cases. They do not
apply generally throughout tort law.

I. Volenti Non Fit Injuria.

II. Public Policy.

III. Mistake

IV. Inevitable Accident.

V. Act of God.

VI. Private defence.

VII. Necessity.

VIII. Statutory Authority.

However, for this particular project submission, more focus is put on Act of God (Vis
Major) as a general defence to tort.

Vis Major is derived from the Latin words vais maior: vis ( force) + major ( greater) i.e.
an overwhelming force of nature having unavoidable consequences that under certain
circumstances can exempt one from the obligations of a contract.

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The term Vis Major is a superior force. In law it signifies inevitable accident. This term is
used in the civil law in nearly the same way that the words Act of God is used in the
common law. Generally, no one is responsible for an accident which arises from vis
major.

Act of God can be understood as a natural catastrophe which no one can prevent such as
an earthquake, a tidal wave, a volcanic eruption, or a tornado. Acts of God are significant
for two reasons.

1) For the havoc and damage they wreak and


2) Because often contracts state that "acts of God" are an excuse for delay or failure to
fulfil a commitment or cause damage to a party for which another might be held liable.

Act of God as defined by Winfield and Jolowicz:

Where an act is caused (harmful to a party) directly by natural causes without human
intervention in circumstances which no human foresight can provide for and against and
of which human prudence is not bound to recognize the possibility, the Act of God as
defence can be applied.

The Act of God was recognized by Blackburn J. in

Rylands v. Fletcher1. The facts of the case were that B, a mill owner, employed
independent competent contractors to construct a reservoir to provide water for his mill.
In the course of work, the contractors came across some old shafts and passages on Bs
land. They communicate with the mines of A, a neighbour of B, although no one
suspected this for the shafts were appeared to be filled with earth. The contractors did not
block them up, and when the reservoir was filled, the water from it burst through the old
shafts and flooded As mines. Here. Blackburn J. ruled that the defendant can excuse
himself by showing that the escape was owing to the plaintiffs default or perhaps the
escape was the consequence of vis major or the Act of God.

1
(1866 L.R.1 Ex. 265 at 280)

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The mill in Bs land for which a reservoir was being created resulting subsequently to
legal injury to A.

The same rule was also applied in Nichols v. Marsland2. In this case, the defendant for many
years had been in possession of some artificial ornamental lakes formed by the damming up of a
natural stream. An extraordinary rainfall, greater than any in the memory of witnesses broke
down the artificial embankments and the rush of escaping water carried away four bridges in
respect of which damage the claimant sued. Judgement was given for the defendant that she was
not negligent and the court held that she ought not to be liable for an extraordinary act of nature
which she could not reasonably anticipate.

Whether a particular occurrence amounts to an Act of God is a question of fact, but the tendency
of the courts nowadays is to restrict the ambit of the defence, not because strict liability is
thought to be desirable but because increased knowledge limits the unpredictable. Taking the
case of Greenock Corp. V. Caledonian Ry3, the House of Lords criticized the application of the
defence in Nichols v. Marsland4. The corporation constructed a concrete paddling pool for
children in the bed of the stream and to do so they had to alter the course of the stream and
obstruct the natural flow of the water. Owing to a rainfall of extraordinary violence, the stream

2
(1876 2 Ex.D.1.)
3
(1917 A.C. 556.)
4
Supra fn.2

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overflowed at the pond and a great volume of water, which would have been naturally a
normally have been carried off by the stream, poured down a public street, into the town and
caused damage to the claimants property. The House of Lords held that it was not an Act of God
and the corporation was liable. It was their duty so to work as to make proprietors or occupiers
on the lower level as secure against injury as they would have been had nature not been
interfered with.

Similar considerations apply to an extraordinary high wind in Cushing v. Walker & Sons5
where the judgement was given by Hallett J. that before wind can amount to an Act of God, the
wind must not merely be exceptionally strong, but must be of such exceptional strength that no
one could be reasonably expected to anticipate or provide against it and extraordinary high tide
in Greenwood Tileries v. Clapson6 where Branson J. gave judgement.

5
(1941 2 All E.R. 693 at 695)
6
(1937 1 All E.R. 765 at 772)

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Understanding the differences between Act of God & Force Majeure

Inevitable Accidents are defined as any accidents that could not have been foreseen or prevented
by the due care and diligence of any human being involved in it.In another definition, An
Inevitable accidents are those unavoidable accidents which could not by any possibility is
prevented from happening by the exercise of ordinary care, Caution and skill. It does not apply to
anything which the party to the accident can avoid or could have avoided. In the word of Sir
Frederick Pollock not avoided by such precautions as a reasonable man, doing such an act then
there, could be expected to take It also includes any force which cannot be controlled by any
human being. Act of God (Vis Major) a term in the world of legal practices which many
defendant sides use to prevent themselves from getting convicted for the accusation they are
facing. The term is one of the defenses present in the defense of Inevitable Accident. The other
defense under the clause of inevitable accidents is Force Majeure. Literally both the term means
the same but in legal uses both are different. Where act of God includes all causes of an
inevitable accident to be occasioned by elementary forces of nature not connected with any
agency of man or any other cause directly or indirectly on the other hand, the definition of Force
Majeure is much wider term which not only includes the natural forces but also include other
causes which may not be related to nature and can be connected to human agency directly and
indirectly, but on whom the humans involved in the accident dont have any control or the
incident whose happening was inevitable and which can cant be controlled. Force majeure
clauses excuse a party from performance if some unforeseen event beyond its control prevents
performance of its contractual obligations.By the above mentioned definition of Force Majeure
we can understand its subjectivity and wide range of clauses and examples include Wars,
Machinery Breakdown, Strikes, and etc. Both these defenses are used by parties of contract and
even in tort cases to get acquitted of the charges they are facing cause of not performing of there
duties. As Act of God now runs under the clause of force majeure so in this projects both these
will be dealt. This term Act of God is tracing its history and use back down to 13th century
specifically referring to all the acts which god has undertaken and is beyond the reach of human
control.This term later evolved in the legal field and was first used by Lord Ellenborough (16
November 1750 13 December 1818) in 1803 as:By Common Law, Carriers are insurers
against every loss of property entrusted to their care, except losses arising from the Act of God,
or the Kings enemies.Later it was defined in various books and dictionary including Peter
Simmonds Dictionary of Trade Products, 1858 asAny act which is outside human control and
therefore not the responsibility of any individual or corporation. Till this time this phrase was
in use in both legal field and insurance sector where the insurance companies cannot be claimed
for the damages occurring by any event which is covered under the phrase Act of God.Force
Majeure has traced back its origin to the Napoleonic Code, where as in common law system
the concept has evolved from one of physical impossibility to frustration of purpose (U.K.)
to commercial impracticability (U.S.).

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In Present Use :-_At present the defense of Act of God is claimed under the cases of contract
where the parties to the contract are not able to fulfill their obligation or liabilities and in tort
cases if the incidents which have caused damaged to the plaintiff is by the consequence of any
force which was not under the control of humans. In Contracts and Insurance :- This clause
along with the clause of force majeure can be seen and observed in various policy and agreement
papers of insurance and other contract where the clause of both Act of God and Force Majeure
can be find mentioned as the defense to the parties to the contract if the obligation was not
fulfilled because of the uncontrolled force of nature or incident like wars and machinery or act of
states which can be beyond control. In Indian context the clause of Act of God is observed
mostly under the clause of force majeure and is mentioned under the drafting of the act for
highway infrastructure development and in Sec. 20 of Delhi Rent Act 1995. Where the Delhi
Rent Act is absolving all the duties of renter to pay damages to land lord, if, the damages caused
by any action, which is included under Force Majeure. In the former one the action which is
under the force majeure if caused damaged will be compensated by the Government of India.In
most of the policy paper of insurance company generally dealing with insurance of property and
business the damage caused by Act of god or force majeure is not covered. The same is observed
under the case of Union of India (UOI) v. Prabhakaran Vijaya Kumar and Ors. Were the
honorable judge expressed the Act of god and other form of inevitable accidents as an exception
to be paid damages and of strict liabilities. In another case of Kerala Transport Co. v. Kunnath
Textiles the court held that those acts which dont include human interference will be considered
act of god but other inevitable accident will be included as Force Majeure and if both mentioned
in the term of contract or insurance policy as non claimable, and if damages caused by acts
which lies any of the two clauses then the petitioner cant claim the damage. In other case of
P.K. Kalasami Nadar v. K. Ponnuswami Mudaliar and Ors., the court defined Act of God
asan act of god will be an extra-ordinary occurrence due to natural causes, which is not the
result of any human intervention In this case the court has also said that accidental fire which
may not be caused by human interfere cannot be said as act of god.In the case of Kerala
Transport Co. v. Kunnath Textiles the court also held that act of god is and can be an exception
to absolute liability and can be claimed as a defense. All the above cases are related to insurance
or carriers transport services where the term Act of god has been deemed by court to absolve the
liability of the parties and in case of Kerala Transport Co. v. Kunnath the court has also defined
Force majeure as a defense to absolve the liabilities and it is to be noted that in all the cases
because of the circumstances which was not under the control of humans, and if damages were
occurred to the good because of those incidents then it cant be claimed from the insurance
policy.The above cases were dealing with the insurance companies but even coming to the cases
related to a buyer and a seller or service provider, Act of God, and Force majeure act as a key
point in contract and in the case of Smt. Inacia P. Carvalho v Desk To Desk Courier and Cargo
Limited the honorable court has held that even in the event of Force Majeure a respondent cant
plea for absolving of his duties and liabilities which he himself voluntarily took by the contract
whose consent was also fulfill and is legal and enforceable and if that has happen then the
respondent is liable to compensate the other parties of the contract and that Force Majeure and
Act of god doesnt include every instances to cover up the deficiency in their services and their
negligence. In this case the honorable court also said that it is always believed in good faith that
a matter of professionalism will always be shown by performing the obligation of contract and
for escaping the liabilities by asking the plea of Force Majeure in any negligent unprofessional
action is not acceptable. Hence, following the words the court in this case held the respondent

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liable for not delivering the courier with the clause of urgent printed above it on time and ordered
the same to compensate the plaintiff In case of Dharnrajmal Gobindram v. Shamji Kalidas the
honorable Supreme Court of India held that if the clause of Force Majeure is not defined then the
contract can be deemed void. In Cases of Torts and Other Civil SuitsAct of God.In the cases of
torts and other civil cases Act of god and Force Majeure are used as a general defense under
inevitable accidents.This term (Act of God) is mentioned and deemed as a defense for the
accusation of strict liability under the case of Burnie Port Authority v General Jones Pty Ltd.,
and for this they have referred to the judgment of Rylands v. Fletcher from where the term of
strict liability was coined. The judgment is as follows:The same result is arrived at on the
principles referred to by Mr. Justice Blackburn in his judgment, in the Court of Exchequer
Chamber, where he states the opinion of that Court as to the law in these words: We think that
the true rule of law is, that the person who, for his own purposes, brings on his land and collects
and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he
does not do so, is prim facie answerable for all the damage which is the natural consequence of
its escape. He can excuse himself by showing that the escape was owing to the Plaintiffs default;
or, perhaps, that the escape was the consequence of vis major, or the act of God; but as nothing
of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. But in the
case of Railroad Company v. Reeves the judge of the case has laid down some of the guide lines
for the use of Act of God in its judgment which are:2d. If you shall be satisfied from the proof
that the tobacco was injured while the cars upon which it was being shipped were standing at the
depot in Chattanooga by a freshet which submerged the cars containing the tobacco, and that no
human care, skill, and prudence could have avoided the injury, then such injury would be
occasioned by the act of God, and the defendant would not be liable. But, if you believe that the
cars containing the tobacco were brought within the influence of the freshet by the act of the
defendant, or its agents, and that if the defendant or agents had not so acted the tobacco would
not have been damaged, then the injury would not be occasioned by the act of God, and the
defendant would be liable for the damage sustained. intervened, and the defendant would not
be relieved from liability, and the plaintiff will be Force Majeure:-The same situation is now
there in the case of Force Majeure where before deciding the case the court, have to look to the
side that whether the act of defendant was playing the remote cause of damage or immediate and
if it is found out that the later is in play then the defendant will be held liable, and it is to note
that under common law both necessity and force majeure should be seen together and then
should be interpreted. In the case of Lebeaupin v Richard Crispin & Co. the honorable court has
defined what all can be included in the clause of force majeure and its definition in which it has
stated thatForce Majeure. This term is used with reference to all circumstances independent of
the will of man, and which it is not in his power to control, and such force majeure is sufficient to
justify the non-execution of a contract. Thus, war, inundations, and epidemics, are cases of force
majeure; it has even been decided that a strike of workmen constitutes a case of force majeure.
In the case of Md. Serajuddin v State of Orissa the honorable high court of Orissa stated various
situations which is not included in Force Majeure not considering the fact that it is hampering the
work to be done or not. In this case the court mentioned that the non availability of land or bad
weather will not be included under force majeure.In all the case mentioned above we can see and
observed the subjectivity of the clause which has also showed us that this clause is still not a
standardized clause and it depends on the precedents and on the discretion of court to accept
what can be in this clause and what cant, referring to the situation of the cases.

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Some famous and important cases of Act of God and Force Majeure.One most interesting thing
about these clauses is that we have the right to sue the god for claiming compensation. In the
history of legal field there are two cases which have attracted the attention of people by suing the
god.After going through all the sources, I conclude saying that the defense of Act of God (Vis
Major) and Force majeure are not absolute and have changed considerably in changing times.
There are various features added to the clauses in times which have changed the characteristics
of these two words and their legal meaning too. Where the Act of God is still much or less the
same with some minor changes mostly in the language and its interpretation the Clause of Force
Majeure has got its ambit wider and now is even including Act of God in itself, hence both the
clauses in a broader meaning are not separate any more.

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. LEGAL DEFINITION

Act of God was first judicially defined in Tennet v. Earl of Glosgow Lord Westbury, was first
recognised by Blackburn J. in Rylands v. Fletcher and was first applied in Nichols v. Marsland
and many other cases.Black's Law Dictionary defines an act of God as "An act occasioned
exclusively by violence of nature without the interference of any human agency. A natural
necessity proceeding from physical causes alone without the intervention of man. It is an
accident which could not have been occasioned by human agency but proceeded from physical
causes alone."Vis major is similarly defined, as "A greater or superior force; an irresistible force.
A loss that results immediately from a natural cause without the intervention of man, and could
not have been prevented by the exercise of prudence, diligence, and care."According to Salmond
"act of God" includes those acts which a man cannot avoid even by taking reasonable care. Such
accidents are are the result of natural forces and are incoherent with the agency of man.Thus it is
an act which "is due to natural causes directly and exclusively without human intervention, and
that it could not have been prevented by any amount of foresight and pains and care reasonably
to have been expected from him i.e. the defendant . Accor ding to Lord Mansfield, it is
something in opposition to the act of man.

ELEMENTS

NATURAL CAUSES

An act of God is an uncommon, extraordinary and unforeseen manifestation of the forces of


nature, or a misfortune or accident arising from inevitable necessity. An act of god cannot be
prevented by reasonable human foresight and care.
The effect of ordinary natural causes may be foreseen and avoided by the exercise of human
care. For example, the fact that rain will leak through a defective roof is foreseeable. In case

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of foreseeable causes, failure to take the necessary precautions constitutes negligence, and 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. Therefore in such cases the injured party has no right to damages.
Acts of god are generally attributable to forces of nature. They are generally in the nature of
accidents caused by tornadoes, perils of the sea, extraordinary floods, and severe ice
storms. Snowstorms of great violence have been held to be acts of God. Whether freezes are
acts of God depend on the locality and season of the year" in which they occur, i.e., their
foreseeability is affected to a greater extent than other natural occurrences by these factors.
Catastrophic earthquakes and volcanic eruptions should be defined as acts of God since they
measure up to the accepted definitions of act of God in every
respect. However, fires are generally not considered acts of god unless they are caused by
lightning. 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.
UNUSUAL VIOLENCE- BOTH SUDDEN AND IRRESISTIBLE
AN OCCURRENCE NOT REASONABLY FORSEEABLE
The basic and prime element of an "act of god" is the happening of an unforeseeable event.
For this, if the harm or loss was caused by a foreseeable accident that could have been prevented,
the party who suffered the injury has the right to compensation. However, the damage caused
by an unforeseen and uncontrollable natural event is not compensable as it could not have been
prevented or avoided by foresight or prudence of man

perty owMoreover, courts are of the opinion that the "act of God" defence exists only if the
event is so exceptional and could not have been anticipated or expected by the long history of
climate variations in the locality. It is constructed by only the memory of man i.e. recorded
history. The courts may even demand expert testimonies to prove that an event was
unforeseeable.

IMPOSSIBLE TO PREVENT BY ANY REASONABLE PRECAUTIONS AND ABSENCE OF


HUMAN AGENCY CAUSING THE ALLEGED DAMAGE
It means practically impossible to resist. Negligence constitutes failure to take the necessary
precautions. In an incident where a human factor was present, even though the harm could not
be prevented, the fact that the human factor exercised reasonable care and precautions to prevent
the harm has to be proved if the defence of "act of God" has to prevail. If negligence is alleged
and proved, the defence of "act of God" will fail. If a home owner was negligent in properly
maintaining a tree that fell on a passerby, he cannot be exempted from liability by "act of God"
principle.
In Clark v. Multnomah, the Court made a decision that the flooding of a house was not an act of
God where it was caused by the breakage of a pipe fitting in the house. The cause of harm was
evidenced by the fact that a repairman had worked with the part that broke just hours earlier.

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ESSENTIALS
There must be operation of natural forces like exceptional rainfall, storms, tempests etc. without
any human intervention.
The incident must be extraordinary and not which could be anticipated and reasonably be
guarded.
ORIGIN & HISTORICAL EVOLUTION
The term 'act of God' occurs and is described in holy texts dating back to the 13th century,
specifically referring to acts that God has undertaken. The 'act of God' referred is that which is
used in legal and insurance circles when discussing any act which is outside human control and
governance 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:
"Force-majeure, a French commercial term for unavoidable accidents in the transport of goods,
from superior force, the act of God, etc."
In July 1803, The Times included this legal ruling given in a court case by Lord Ellenborough,
which is in terms that we are now familiar with from our own household insurance policies:
"By Common Law, Carriers are insurers against every loss of property entrusted to their care,
except losses arising from the Act of God, or the King's enemies."
Earthquakes, floods, hurricanes, tornadoes, wildfires, drought and a deadly tsunami are a long
series of natural calamities of seemingly large proportions have been witnessed by us . Lives are
lost, properties destroyed , and emotions shattered when these forces of nature tragically strike.
The nature's blow may be so intense that it may come as a total shock and baffle both to the
direct victims of the disaster and, subsequently, to the accused tortfeasors 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. Act of God, as a legal concept
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, direct concept with few gradations or intricacies.
Consequently, all too often, many lawyers have misused the phrase "act of God" to mean any
unfortunate act of nature. In a sixteenth century opinion, in the Shelly's Case best known for the
famous property law doctrine, the court wrote in terms of performance becoming impossible by
an act of God, which was the death of one of the parties. In an attempt to give life to this notion
of fairness, the courts in Shelley's Case and other early decisions drew lines between those acts
which were natural and those which were caused by man, so as to forgive man for those acts that
were beyond his anticipation or control. 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 again
appeared 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

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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.

In 1785, Lord Mansfield delivered a unanimous opinion in Forwardv. 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.

CASE LAW: In Nichols v. Marsland(1875)( Discussed in judicial cases section)

APPLICATION

"Act of God" is often a difficult defence to establish. It requires both the exclusion of human
agency and unforeseeability to establish an act of God. For an event to be a legal act of God, the
natural event must have been the "sole and immediate cause of the injury," with no "co-operation
of man, or any admixture of human means.

Generally speaking, then, the vis major defence can apply to a case involving damage or harm by
a natural force, but only in circumstances in which that force is strong enough to overcome and
nullify any potential contributory cause by a human agency. The issue is whether the magnitude
of force is reasonably foreseeable such that a defendant should have taken precautions to avoid
personal injury or property damage resulting from it. For example, a 55-mile-per-hour wind gust,
though rare, is reasonably foreseeable in Wisconsin. However, a 200-mile-per-hour tornadic
wind is probably not; the vis major defence would apply to personal injury or property damage
caused by such a force, even if a human agency (for example, a product such as a window or
door) was involved.

With respect to rain: An hourly rainfall of three inches, while heavy, is not unforeseeable in
Wisconsin; an eight-inch hourly rainfall probably is. A basement collapse would probably
implicate the vis major defence in favour of a basement contractor in the latter circumstance but
not in the former circumstance. When property damage or personal injury is caused in part by a
natural force and in part by a human instrumentality, the plaintiff should argue that the natural
force was foreseeable and should have been anticipated in a manner that would have avoided the
damage. The defendant then has the burden to establish that the natural-force component of the
cause was so huge and so monumental that it was not reasonably foreseeable.

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The point is that the occurrence of natural phenomenon need not be unique, nor need it be one
that happens for the first time; it is enough that it is extraordinary or exceptional and so as it
could not be reasonably anticipated and also it must be free from human conduct.

The word 'vis major' imports something abnormal and with reference to the context means that
the property by the act of God has been rendered useless, for the time being i.e. it was rendered
incapable of any enjoyment.

Vis Major to afford a defence must be the immediate cause, the causa causans, and not merely a
causa sine qua non of the damage complained of. The mere fact that vis major co-existed or
followed on the negligence 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. The legal maxim 'Actus dei
nemini facit injuriam' means the Law holds no man responsible for the act of God.

The important thing in regard to vis major is not the positive intervention of natural forces but "a
process of nature not due to the act of man" and it is this negative side which deserves emphasis.
It is thus a negation of liability.

Complete exclusion of human cause is a difficult standard for a defendant to overcome, which
likely explains why the defence is not commonly argued or upheld. As a result, modern courts
sometimes characterize acts of God as "unavoidable accidents" because, although the terms often
are synonymous, unavoidable accidents need not be free from human agency.

ACT OF GOD AND INEVITABLE ACCIDENT DISTINGUISHED

Every act of God is an inevitable accident but not vice versa.

An Act of God is discrete and distinct from inevitable accident. In order that an accident may be
an act of God it must have followed directly from natural causes without human intervention. In
Nugent v. Smith, Cockburn, C.J. said "All causes of inevitable accident, casus fortuitous
meaning an uncontrollable accident, may be divided into two classes:

Those which are occurred by elementary forces of nature not connected with the agency of man
or other cause [Act of God]

Those which arises either wholly or in part by agency of man. [Inevitable Accident]

Example- 1. If a ship is pushed ashore by a violent storm, this is the Act of God; but if it is run
ashore during a fog by mistake, however unavoidable on the part of captain, this is the act of
man.

If a building is set on fire by lightning, this is an act of God; but not so if it is done by human
through falling of a lamp even though this was due to no negligence.

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INEVITABLE ACCIDENT

ACT OF GOD

Could not be prevented by the exercise of ordinary care, caution and skill

A direct violent, sudden and irresistible act of nature as could not, by any amount of human care
and skill have been resisted is Act of God.

May be controlled by human beings

2. Not controlled by human beings.

3. Strict liability can be imposed on the tortious liability occurred due to inevitable accidents

3. Even strict liability can also not be Imposed in cases of torts arising out of acts of Gods

4. The courts have discretionary power in determining the defendant's tortuous liability

4. No discretionary power

Conclusion : The defence of inevitable accident is a more general defence and is distinct from
the act of God in so far as it is dependent on human agency and not on natural forces and in the
degree of unexpectability.

ACT OF GOD & 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 (act of God & Negligence) 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

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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.

JUDICIAL CASES

Nichols v. Marsland

In this case, The defendant had constructed certain artificial lakes on her land by damming up a
natural stream at appoint higher up than the defendant's land. An extraordinary rainfall, "greater
and more violent than any within the memory of witnesses", caused the stream and lakes to swell
to such an extent that the artificial banks burst and the escaping water rushed on to the plaintiff's
land and carried away four county bridges. Nichols, the plaintiff brought an action for damages
on the plea that the defendant was liable under the rule in Rylands v. Fletcher .

HELD: The contention was rejected and the defendant was held not liable. The Court of
Exchequer Chamber held that she ought not to be liable for an extraordinary act of nature which
she could not reasonably foresee. It was said that one is only bound to provide against the
ordinary operations of nature, but not against her miracles.

Greenock Corpn. V. Caledonian Railway Co.

The facts were that the corporation in laying out a park constructed a pool for children in the bed
of a stream and there altere its course and obstructed its natural flow. Owing to rainfall of
extraordinary intensity, the stream overflowed at the pond and great volume of water poured
down a streetand flooded down the property of a railway company.

HELD: It was held that this was not damnum fatale and the Corp. was liable. Nichols case was
distinguished on the ground that in that case it was the storing of water in a reservoir and not
with interference with the course of natural stream and that anyone who does interfere with it
must provide against even an extraordinary rainfall.

State of Mysore v. Ramachandra

In this case, the State had constructed a reservoir for the supply of drinking water for the
villagers of Nipani. But the construction was not completed and the over-flow channel linked
with reservoir was partially constructed. Land and crops were damaged due to flow of water
resulted from rain. The plaintiff filed the suit for damages.

HELD: The State resisted the suit that it was the act of God. But, the court rejected the defence
and observed - "Assuming an act of God such as flood wholly unprecedented, the damage in
such a case results not from the act of man in that he failed to provide a channel sufficient to

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meet the contingency of the act of God. But for the act of man there would have been no damage
from the act of God."

T. Gajayalakshmi v. Secretary, PWD, Govt. of T.N.

The deceased, a cyclist, who was going on his way was electrocuted by the falling of an
overhead electric wire.

HELD: The court rejected the contention of Electricity board that it was an unexpected event due
to rain and wind and that the snapping of the electric wire was an act of God. It also rejected the
plea that the death took place due to the negligence of the deceased in his leaving the home that
day in rain and wind.

Mahindra Nath Mukherjee v. Mathuradas Chaturbhuj .

A cinema advertising board was placed on the roof of the defendant which fell down and injured
the plaintiff. Plaintiff brought a suit against the defendant and contended that the board fell due
to storm of unusual severity. But, it was observed that during the season of monsoon a storm of
this magnitude is not uncommon. The defendant had not ensured or foresee that the fixing of
banner on such a height is strong enough to face the pressure of storm during monsoon season.
The Calcutta High Court held that such a storm cannot be said to be so unexpected that no
human foresight could reasonably be expected to anticipate it and cannot be regarded as 'vis
major' or 'act of God'. Hence, the suit was allowed and the defendant was found negligent.
Before the act of God can be admitted the defendant could have taken reasonable care and done
all that what he was bound to do.

Kallulal v. Hemchand

The defendant constructed a building and it was collapsed and as a result of it, two sons of the
plaintiff were dead. Before the day the building collapsed there was a heavy rain. The defendant
pleaded the rain as an act of God

HELD: The court observed that the Acts of God must be apparent on the face of the records.
They must be known and affect largely to entire public. The defendant was held liable.

The act of God or vis major can also be explained mathematically as follows:

(i) Unprecedented + Unforeseen + Irresistible = Act of God

(As it has been discussed in this Chapter in the cases Nichols v. Marsland; Mahindranath v.
Mathura Dass)

(ii) Unprecedented + Foreseen + Irresistible + Act of God

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(Nichols v. Marsland case)

(iii) Precedented + Unforeseen + Irresistible = Act of God

(Greenock Corporation case)

(iv) Precedented + Foreseen + Irresistible = Act of God

(Greenock Corporation and Mahindranath cases)

EXAMINING ACT OF GOD - PRESENT SITUATION

Vis Major as a defence depends on two ; 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.

Flaws in The Common Law's Approach to The Act Of God Defence

1. The Problem of Increasing Event Foreseeability

In terms of Event Foreseeability, there are two independent trends which suggest a strong
possibility that climatic events which historically qualified as Acts of God may become
increasingly foreseeable: improved meteorological techniques and the effects of climate change.

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It is undeniable that there is increased data available and increased forecasting powers inherent in
the continuing development of meteorological science.

This trend has two impacts on the foreseeability of such climatic events for purposes of the Act
of God defence: (1) defendants can increasingly know that the hurricane or storm is coming with
time to take some precautionary steps in response because they will be warned of it (so that it
will be more difficult to say that the event was "unexpected" or "unanticipated"); and (2) climatic
data of past storms will continue to accumulate (so as to support conclusions that the event is not
"unusual" for the location at that time of year). In short, the climatic events which historically
may have been considered Acts of God will be more foreseeable in the future and thus less likely
to support the defence simply because we will know more and more about the weather. In short,
as climatic change increases the frequency and intensity of hurricanes, heavy storms, and the
flooding associated with such climatic events, it appears that it will be harder for defendants to
claim that the events themselves or the consequences of those events were not foreseeable. Thus,
the defence is likely to be diminished in its utility simply because it will be harder to satisfy the
legal requirements relating to the Event Foreseeability necessary to invoke the defence

2. The Problem of Response Forseeability

As the climatic events themselves become more foreseeable, Response Forseeability becomes
more critical to the Act of God defence because the burden is on the defendant to show that it
took reasonable precautions in light of the foreseeable risk. It is here that foreseeability in the
context of the Act of God defence really breaks down because of the inability of the defendant to
foresee what the adequate response is before the climatic event occurs.

To illustrate the problem, consider a fact pattern taken from the Act of God case law: a
warehouseman holding goods for a customer in a Gulf Coast state in which a hurricane could
strike. Given that a significant climatic event (i.e. a hurricane in the Gulf) is foreseeable, the
court will have to analyze whether the defendant's actions were reasonable in light of the
foreseeable risk.

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CONCLUSION

In law, then, the essence of an Act of God is not so much a phenomenon which is sometimes
attributed to a positive intervention of the forces of nature but a process of nature not due to the
act of Man and it is this negative side which deserves emphasis.
The criterion is not whether or not the event could reasonably be anticipated, but whether or not
human foresight and prudence could reasonably recognize the possibility of such an event. Even
in such limited form, however, this defence, like the defence of act of a stranger, shifts the basis
of the tort from responsibility for the creation of risk to culpable failure to control that risk. This
has been criticized on the ground that an accidental escape caused by the forces of nature is
within the risk that must be accepted by the defendant when he accumulates the substance on his
land.

Although the act of God defence - that a defendant is insulated from liability for personal injury
or property damages caused by a natural cause - is rarely used, it may become more common and
general in the future if predictions of disastrous weather events caused by global warming prove
true. One prediction related to global warming is that catastrophic weather events such as
hurricanes, tornados, and torrential rains will occur more often. All of these have the potential for
causing extensive personal injury and property damage and consequently mental trauma. Therein
lie the core for more frequent, common and general use of the vis major defence. Is it still
viable? How might it apply as a defence to tort?

The act of God defence is as common today as ever. Though, it is still not relied on very often,
likely because of the difficulty of proving that human elements played no role in causing an
injury.

The potential application of vis major will expand if meteorological predictions concerning
climate change through global warming come to accomplishment and realization. However, as
these events become more common, the standard of what constitutes a reasonably foreseeable
natural force will doubtless itself expand. This again would confine application of the vis major
defence insofar as defendants become obligated to anticipate and account for effects of more
extreme and dangerous natural phenomena, especially those associated with the weather.

It has been said that it would be probably never be capable of complete, exact & unassailable
definition. But it has also been said that this "untheological expression" is well understood by
lawyers. It is such a direct, violent , sudden act of nature that no man could forsee and if he can,
he can't prevent it.

However, in the era of global climate change, courts can hardly pretend that causation can be
determined to be "natural" or "human." Storm patterns and frequencies are changing. Growing
seasons are shifting. Glaciers are melting and seas rising. Global climate change will present
courts with the kinds of difficult factual situations that make it impossible to pretend the old act
of God divide should stand untouched. Even though a particular defendant in a given case may
not have been demonstrably at fault, the act of God doctrine remains analytically flawed because
it requires that "nature" be the sole cause of a phenomenon to the exclusion of all human action.
In effect, the doctrine asks parties to the case to prove the impossible-to prove that nature can be

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absolutely separated from the human. The act of God doctrine is analytically unsupportable-and
yet it continues to be applied. With respect to the acts of God doctrine, this suggests that our
current legal frameworks are inadequate and uncomplete. By continuing to embrace the doctrine,
we resist bringing our legal concepts into line with modern scientific understandings-and
implicitly perpetuate the public myth that our actions are without climatic consequences.

In law, then, the essence of an act of God is not so much a phenomenon which is sometimes
attributed to a positive intervention of the forces of nature, but a process of nature not due to the
act of man and it is this negative side which deserves emphasis. The criterion is not whether or
not the event could reasonably be anticipated, but whether or not human foresight and prudence
could reasonably recognise the possibility of such an event . Even in such limited form, however,
this defence, like the defence of act of a stranger, shifts the basis of the tort from responsibility
for the creation of a risk to a culpable failure to control that risk. This has been criticised on the
ground that an accidental escape caused by the forces of nature is within the risk that must be
accepted by the defendant when he accumulates the substance on his land.

SHOULD THE ACT OF GOD DEFENCE BE SUPERSEDED?

The scientific reality of increasing Event Foreseeability and its impact on Response
Foreseeability and the special issues created by climate change provide significant factual and
legal fodder for litigants seeking to change judicial mindsets. Because tort law must change from
the bottom up (that is, via litigating individual cases that ultimately lead to appellate courts
articulating a fundamentally different approach to extreme climate events), plaintiffs must be
prepared to (a) argue to the judge for a legal rejection of the defence, (b) make such arguments
by articulating the fundamental problems with the defence and a set of workable replacement
principles, and (c) work to develop jury instructions that minimize the possible confusion the Act
of God Defence can create with the jury. Such a case-by-case approach will take time and a
coordinated effort advancing an agenda to reduce and ultimately replace the Act of God defence.

The Act of God Defence exists and continues to be relevant because it is ultimately a way for a
defendant to avoid liability. The existence of the defence enables and encourages defendants to
raise the defence because it appears to short-circuit the negligence process by suggesting that
there is a set of "special rules" that ultimately absolves them of liability. As long as defendants
believe there is something to gain from raising the defence, they will continue to do so-even if, in
light of the projected impacts of climate change, it promises little more than a fool's paradise.

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BIBLIOGRAPHY

Lunney M and Oliphant K, Tort Law: Text and Materials (2003), 2nd Edition, Oxford University
Press

A Lakshminath & M Sridhar - Ramaswamy Iyer's: The Law of Torts, Lexis Nexis Butterworths
Wadhwa, Nagpur

Ratanlal & Dhirajlal, The Law of Torts, 26th edition 2010, Lexis Nexis Butterworths Wadhwa,
Nagpur

Avtar Singh, P.S.A Pillai's Law of Tort, 9th edition, Eastern Book Co.

Friedman on torts

S.R. Myeneni, Law of Torts & Consumer, First edition, Asia Law House

Websites Referred

http://www.utexas.edu/law/journals/trol/abstract.php?volume=15&page=1

www.christianchatnews.info/christianity/christianity-inevitable-accident-and-act-of-god-as-
defenses-in-tort-law/

http://www.wisbar.org/AM/Template.cfm?Section=Wisconsin_Lawyer&template=/CM/Content
Display.cfm&contentid=101645

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