INTRODUCTION

When the plaintiff brings an action against the defendant for a particular tort, providing the
existence of all the essentials of that tort, the defendant would be liable for the same. The
defendant may, however, even in such a case, avoid his liability by taking the plea of some
defence. Among them we would concentrate on the defence of Inevitable accident and Act of
god.

An “inevitable accident” or “unavoidable accident” is that which could not be possibly

prevented by the exercise of ordinary care, caution and skill. It does not apply to anything which
either party might have avoided. Inevitable accident was defined by Sir Frederick Pollock as an
accident

"not avoidable by any such precautions as a reasonable man, doing such an act then there, could
be expected to take."

In the pre nineteenth century cases, the defence of inevitable accident used to be essentially
relevant in actions for trespass when the old rule was that even a faultless trespassery contact was
actionable, unless the defendant could show that the accident was inevitable. It was for long
thought that the burden of proof in trespass upon the person rested with the defendant and that
trespass, therefore, offered scope to the defence of inevitable accident, but it has now been held
that here too the burden is with the claimant.

“‘An act of God’ as known to the law,

is such an unusual and extraordinary manifestation of forces of nature that it could not under
normal conditions have been reasonably anticipated or expected”

An act of God cannot be avoided by human care, skill, foresight or any reasonable measures; it is
different from an inevitable accident, even though it may have happened at least once before.

An act of God must be “such a direct and violent and sudden and irresistible act of nature as the
defendant could not by any amount of ability foresee would happen or, if he could foresee it
would happen, could not by any amount of care and skill resist, so as to prevent its effect.

AIMS AND OBJECTIVES

To understand the defences of inevitable accident and Act of god.

To find out the difference between them.

HYPOTHESIS

The researcher assumes that the difference between inevitable accident and act of god is that
there is no need of human insurgency in act of god while it is a must condition in inevitable
accident.

RESEARCH METHODOLOGY

The researcher relies on doctrinal method of research to complete the project.

SOURCES OF DATA

The researcher relies on primary and secondary sources of data.

RESEARCH QUESTIONS

1. What is inevitable accident?

2. What is defence of Act of god?

3. How Act of god is different from Inevitable accident?

INEVITABLE ACCIDENT

An “inevitable accident” or “unavoidable accident” is that which could not be possibly

prevented by the exercise of ordinary care, caution and skill. It does not apply to anything which
either party might have avoided. Inevitable accident was defined by Sir Frederick Pollock as an
accident

"not avoidable by any such precautions as a reasonable man, doing such an act then there, could
be expected to take."

It does not mean a catastrophe which could not have been avoided by any precaution whatever,
but such as could not have been avoided by a reasonable man at the moment at which it occurred,
and it is common knowledge that a reasonable man is not credited by the law with perfection of
judgment. As observed by Greene M.R., an accident is "one out of the ordinary course of things,
something so unusual as not to be looked for by a person of ordinary prudence." All causes of
inevitable accident may be divided into 2 classes:

• 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.

The defence of “inevitable accident” in personal injury litigation is one that posits a non- tortious
explanation for an accident. It asserts that where an accident is purely inevitable, and is not
caused by the fault of either party, the loss lies where it falls.

• According to the authorities, once the plaintiff establishes a prima facie case of
negligence, the onus will shift to the defendant to prove inevitable accident. In so doing,
the defendant is required to show how the accident took place and that the loss of control
of the vehicle could not have been avoided by the exercise of the greatest care and skill.
• A defendant may thus escape liability by showing one of two things:
• (i) the cause of the accident, and the result of that cause was inevitable; or

(ii) all the possible causes, one or other of which produced the effect, and with regard to
every one of these possible causes that the result could not have been avoided.

• This standard, though certainly a high one, is not a test of perfection.

• In light of the foregoing general principles, a plaintiff seeking to undermine or defeat a
defendant’s reliance on the defence of “inevitable accident” must challenge – with
evidence and argument – the defendant’s explanation of how the accident, collision or
mishap occurred without his negligence. As is clear from a perusal of the recent
jurisprudence, there are definite limitations on the availability of the defence and it is
unlikely to prevail if the person seeking to invoke it caused or contributed in any way to
the emergency situation.
 • 2
• Some of the factors that will be relevant in considering whether the conduct of a driver
can be characterized as negligent, such that the doctrine of inevitable accident ought not
to be engaged, include: road conditions, weather, speed, the condition of the vehicle, the
intensity of the vehicle’s headlights, the driver’s experience and his/her familiarity with
the roadway, the driver’s reaction to the risk presented, any evasive action taken, other
traffic on the roadway, and the physical and mental condition of the driver (ie. fatigued,
distracted, dizzy, experiencing a medical crisis or condition, etc.)

An accident is said to be ‘inevitable' not merely when caused by Vis major or the act of God but
also when all precautions reasonably to be required have been taken, and the accident has occurred
notwithstanding. That there is no liability in such a case seems only one aspect of the proposition
that liability must be based on fault. Act of God or Vis Major or Force Majeure may be defined as
circumstances which no human foresight can provide against any of which human prudence is not
bound to recognize the possibility, and which when they do occur, therefore are calamities that do
not involve the obligation of paying for the consequences that result from them. Vis Major includes
those consequences which are occasioned by elementary force of nature unconnected with the
agency of man. Common examples are falling of a tree, a flash of lightening, a tornado or a flood.
The essential conditions of this defence are:

• The event causing damage was the result of natural forces without any intervention from
human agency.
• The event was such that the possibility of such an event could not be recognized by using
reasonable care and foresight.
• In the pre nineteenth century cases, the defence of inevitable accident used to be essentially
relevant in actions for trespass when the old rule was that even a faultless trespassery contact was
actionable, unless the defendant could show that the accident was inevitable. It was for long
thought that the burden of proof in trespass upon the person rested with the defendant and that
trespass, therefore, offered scope to the defence of inevitable accident, but it has now been held
that here too the burden is with the claimant[6]. In trespass as well as in negligence, therefore,
inevitable accident has no place. In these cases inevitable accident is irrelevant because the burden
is on the claimant to establish the defendant's negligence, but it does not follow that that it is any
more relevant if the claimant has no such burden. The emerging conception of inevitability can be
seen most clearly in Whitelock v. Wherwell[7], the bolting horse case from 1398. The complaint
in Whitelock was unusual because the plaintiff, rather than just reciting that the defendant had hit
him with force and arms, also alleged that the defendant had "controlled the horse so negligently
and improvidently" that it knocked him down. The defendant conceded that the horse had knocked
down the plaintiff, but pleaded that the plaintiff's fall was "against the will" of the defendant. The
defendant went on to explain that he had hired the horse without notice of its bad habits, that it ran
away with him as soon as he mounted it, and that he "could in no way stop the horse" although he
"used all his strength and power to control" it. It was a plea of inevitable accident in a case of latent
defect (the horse is a "bolter"). The collision may have been inevitable, but it had become
inevitable by virtue of the defendant's negligence, and was thus not held to be an accident.
• The first explicit statement that a defendant can escape liability in trespass if the accident
was inevitable occurs in Weaver v. Ward [8], decided in 1616. The category "inevitable accident"
was understood, in its inception as distinguished from the defence of "accident," or "mischance,"
which was available in felony but not in trespass, and which was a true no-negligence defence.
The defendant in Weaver inadvertently shot the plaintiff when his musket discharged while their
company of soldiers was skirmishing with another band. The defendant pleaded that he
"accidentally and by misfortune and against his will, in discharging his musket, injured and
wounded the plaintiff; which wounding is the same trespass of which the plaintiff complains."
Substantively, this was a plea of accident. The plaintiff demurred, and the court held the
defendant's plea bad. In trespass, the plaintiff needed only to allege that the defendant had done
harm with force and arms, rather than done harm negligently. In actions on the case, however,
allegations of negligence seem always to have been necessary[9].
• In property damage cases involving heavy weather, where there was typically a
presumption of fault against the moving vessel, and the vessel owner's efforts to rebut liability take
the inevitable accident form. The inevitable accident defence was typically invoked when a vessel,
caught in the full force of a storm, has been driven against another vessel or vessels, or against a
fixed structure[10]. Property damage cases also involved destruction by
fire. In Tucker v. Smith[11] (1359), the defendant said simply that his house "caught fire by
mischance and was burned down so that the fire there from being blown by the wind to [plaintiff's]
house" burned it "by mischance." It can be quite as impractical to stop an ordinary wind from
spreading fire as a tempest. The plaintiff therefore elected to join issue on how the fire started
rather than how it spread. His special traverse claimed that the defendants burned the house "of
their own wrong and by their fault" and denied that it "was burned down by mischance."
• In Ellis v. Angwyn[12] (1390), the defendant pleaded that unknown to him and "against his
will, a fire suddenly arose by mischance" in his house, and was spread by "a great gust of wind"
to the plaintiff's houses. The plea says nothing about what the defendant did to prevent the fire
from arising or spreading. The act of God was thus incorporated (though not by that name) in a
plea of accident to show that the harm was inevitable.The last pre-nineteenth century case that
directly deals with how inevitable accident should be pleaded is Gibbons v. Pepper[13]. The
defendant pleaded that his horse became frightened and "ran away with him so that he could not
stop the horse," that the plaintiff ignored his warning "to take care," and that the horse thus ran
over the plaintiff "against the will of the defendant." In substance, this was a plea of inevitable
accident. Gibbons thus holds that inevitable accident should be raised by pleading the general issue
when the substantive nature of the plea amounts to a complete denial of causal responsibility.
The Gibbons court put the "runaway horse" on a par with the hypothetical case of A using B's hand
to strike C, and treated both as denials.
• In Mitchell v. Allestry[14] (1676), the plaintiff was run over by two untamed horses the
defendants were breaking in a public square. The plaintiff initially brought an action claiming that
the defendants "did negligently permit" the horses to run over her. But at the first trial "the evidence
as to the negligence" went against the plaintiff, and she was non-suited. She then brought a second
suit, in which, as counsel for the defendant said, her "own declaration excused" the defendants of
that "negligence," because it said "that on account of their ferocity they could not govern them,
but that they did run upon her." The first suit failed because the evidence-given that the plaintiff
did not challenge the defendants' antecedent decision to break horses in a public square-showed
that the harm was both accidental and inevitable. The court (Hale, C.B.) pointed out, however, that
the plaintiff could sue again on a different theory. This accordingly illustrates the way in which
some decisions about precautions were governed only by accident, while others were also
governed by inevitability. In the Nitro Glycerine[15] case, the defendants, a firm of carriers,
received a wooden case to be carried to its destination and its contents were not communicated. It
was found that the contents were leaking. The case was taken to the defendants' office, which they
had rented from the plaintiff and the defendants proceeded to open the case for examination but
the nitro glycerine which was present had already exploded. All present were killed and the
building was badly damaged. The defendants were held not liable "in the absence of reasonable
ground of suspicion, the contents of the package offered them for carriage" and that, they
were "without such knowledge in fact and without negligence."
• In the case of Holmes v. Mather[16], the defendant's horses while being driven by his
servant on a public highway ran away from a barking dog and became unmanageable that the
servant could not stop them, but could, to some extent guide them. While trying to turn a corner
safely, they knocked down and injured the plaintiff on the highway. It was held that the action was
not maintainable since the servant had done his best under the circumstances. In the case
of Fardon v. Harcourt-Rivington[17] the defendant parked his saloon motor car in a street and left
his dog inside. The dog has always been quiet and docile. As the plaintiff was walking past the
car, the dog started jumping about in the car, smashed a glass panel, and a splinter entered into the
plaintiff's left eye which had to be removed. Sir Frederick Pollock said: "People must guard
against reasonable probabilities but they are not bound to guard against fantastic
possibilities[18]" In the absence of negligence, the plaintiff could not recover damages. In the case
of Brown v. Kendal[19], the plaintiff's and defendants dogs were fighting. The defendant was
hitting the dogs to stop them from fighting while the plaintiff was standing at a distance watching
them. Accidentally, the stick hit and hurt the plaintiff's eye. In an action for damages it was held
that the defendant would not be liable since the damage was the result of a pure accident and not
the negligence of the defendant.
• The use of inevitable accident in early actions interpreted inevitability as impracticality. In
the present scenario, to speak of inevitable accident as a defence, therefore, is to say that there are
cases in which the defendant will escape liability if he succeeds in proving that the accident
occurred despite the use of reasonable care on his part, but is also to say that there are cases in
which the burden of proving this is placed upon him. In an ordinary action for negligence, for
example, it is for the claimant to prove the defendant's lack of care, not for the defendant to
disprove it, and the defence of inevitable accident is accordingly irrelevant and it is equally
irrelevant in any other class of case in which the burden of proving the defendant's negligence is
imposed upon the claimant. Nor is the position different in a case of res ipsa loquitor, for that
merely raises a prima facie case.
•
ACT OF GOD
Act of God, which is defined to be such a direct, violent, sudden and irresistible act of nature as
could not by any amount of ability , have been foreseen or if foreseen, could not by any amount of
care and skill have been resisted[26]. Since time immemorial, we have been witnessing a parade
of natural calamities of seemingly biblical proportions: earthquakes, floods, hurricanes, tornadoes,
wildfires, drought and a deadly tsunami. Lives are lost, properties destroyed or damaged, and
emotions shattered when these forces of nature tragically strike. The severity of nature's blow may
come as a total shock and surprise both to the direct victims of the disaster and, subsequently, to
the accused tort feasors. What follows this is a myriad rush of litigations, especially in heavily
litigated countries like the United States of America. Defendants are quick to claim act of God as
a defence to these lawsuits.For three centuries, the act of God defence has been accepted in
negligence and strict liability cases. As a legal concept, act of God shows up not only as a defence,
but also in discussions of duty and causation. At first glance, the act of God defence seems a
simple, straight-forward concept with few nuances or intricacies. Consequently, all too often,
many attorneys have misused the phrase "act of God" to mean any unfortunate act of nature. Vis
Major to afford a defence, must be the proximate cause, the causa causans, and not merely
the causa sine quo non of the damage complained of[27]. The mere fact that Vis major co existed
with or followed on the negligence to accelerate the damage caused is no adequate defence. Before
an act of God may be admitted as an excuse, the defendant must himself have done all he is bound
to do. In a sixteenth century opinion, in the Shelly's Case best known for the famous property law
doctrine of the rule in Shelley's Case[28], the court wrote in terms of performance becoming
impossible by an act of God, which was the death of one of the parties. The court stated:
"It would be unreasonable that those things which are inevitable by the Act of God, which no
industry can avoid, nor policy prevent should be construed to the prejudice of any person in whom
there was no laches".
No further explanation of the phrase, ‘Act of God', was provided by the court. The phrase
reappeared in the 1702 case of Coggs v. Bernard[29], which invoked liability for a bailment by a
common carrier. Justice Powell opined that a bailee shall answer accidents, as if the goods were
stolen; but not such accidents and casualties as happen by the act of God, as fire, tempest for the
bailee is not bound, upon any undertaking against the act of God.The act of God defence expanded
from common carriers into other areas of strict liability. The Courts then extended the act of God
defence to cases of negligence. The act of God defence received prominence in decisions
construing the common-law liability of common carriers who were treated as insurers of the goods
they carried. Since strict liability applied to insurers, the act of God defence existed to ameliorate
an otherwise potentially draconian liability. In the case of Morse v. Slue[30], Judge Hale stated
that the master is not chargeable in the case of pirates, storms, and the like, "but where there is any
negligence in him he is." Morse involved a ship lying in the Thames which was boarded by robbers
who took the plaintiff's goods from the vessel.
In 1785, Lord Mansfield delivered a unanimous opinion in Forwardv. Pittard[31], which involved
an accidental fire for which the carrier was in no way at fault. The court clearly established a rule
of strict liability for common carriers: It appears from all the cases for 100 years back, that there
are events for which the carrier is liable independent of his contract. Again, in Forward, the English
courts limited the act of God defence by excluding acts of man. In addition, the burden of proof
was shifted from the plaintiff to the defendant to establish the existence of the act of God defence.
Although the courts subsequently split on the liability issue for common carriers whose delay
subjected its freight to damage from an act of God, there was a consensus that liability would result
if the common carriers knew that the force of nature was coming.In the 1875 case
of Nichols v. Marsland[32], the defendant had a series of artificial lakes on his land in the
construction and maintenance of which there had been no negligence. Owing to unusual rainfall,
so great that it could not have been reasonably anticipated, the reservoirs burst carrying away four
country bridges. The court of appeals held that an act of God is a defence in cases of reservoir
failures.In the subsequent case of Smith v. Fletcher, Baron Bramwell followed the strict liability
holding of Rylands, but dismissed the act of God defence even though the flood was extraordinary,
and they could not foresee it on the grounds that it did not affect their legal
responsibility.Greenock Corp. v. CaledonianRailway Co.[33], contrasts with Nichols. The House
of Lords cirticised the application of the defence in Nichols v. Marshland, and four of their
lordships cast doubt on the finding of facts by the jury in that case In this case, the Corporation
obstructed and altered the course of a stream by constructing a padding pool for children. Due to
rainfall of extraordinary violence which would normally have been carried away by the stream
overflowed and caused damage to the plaintiff's property. It was held that rainfall was not an Act
of God. The House of Lords followed Rylands in holding that a person making an operation for
collecting and damming up the water of a stream must so work as to make proprietors or occupants
on a lower level as secure against injury as they would have been had nature not been interfered
with. Nichols was further distinguished on two bases: the escape in Nichols was from a reservoir
rather than a natural stream, and a jury in Nichols found the flood was due to an act of God. There
had been ‘no negligence in the construction or maintenance of the reservoirs," and "the flood was
so great that it could not reasonably have been anticipated'.
Smilar to Greenock Corp. is Nitro-Phosphate & Odam's Chemical Monroe Co. v. London & St.
Katherine Docks Co.[34], where an extraordinarily high tide may well have constituted an act of
God, but the defendant was still negligent because it built a dock insufficiently high. As stated by
Lord Justice James in Nugent v. Smith[35], the accident must be due to natural causes, directly and
exclusively, and that it ‘could not have been prevented by any amount of foresight and pains and
care reasonably to be expected from him'.
In the case of Blyth v. Birmingham Water Works Co[36] the defendants had constructed water
pipes which were reasonably strong enough to withstand severe frost. There was an extraordinarily
severe frost that year causing the pipes to burst resulting in severe damage to the plaintiff's
property. It was held that though frost is a natural phenomenon, the occurrence of an unforeseen
severe frost can be attributed to an act of God, hence relieving the defendants of any liability. In
the Indian case of Ramalinga Nadar v. Narayana Reddiar[37] the plaintiff had booked goods with
the defendant for transportation. The goods were looted by a mob, the prevention of which was
beyond control of defendant. It was held that every event beyond control of the defendant cannot
be said act of God. It was held that the destructive acts of an unruly mob cannot be considered an
Act of God.
In the case of J & J Makin Ltd .v London and North Eastern Railway Co.[38], liability for damage
was imposed on the defendants even if such damage was caused by an act of God. The defendants
were owners of a canal which crossed a valley at the top of a high embankment. As the result of a
violent storm the embankment collapsed and a great quantity of water escaped from the canal into
the stream below and was carried down to the plaintiff's mill where it was deposited together with
a large number of stones. The plaintiffs in claiming damages said that the act imposed absolute
liability irrespective of negligence.
ACT OF GOD AND NEGLIGENCE
Act of God, in law, is an accident caused by the operation of extraordinary natural force. The effect
of ordinary natural causes (e.g., that rain will leak through a defective roof) may be foreseen and
avoided by the exercise of human care; failure to take the necessary precautions constitutes
negligence. Negligence, in law, especially tort law, is the breach of an obligation (duty) to act
with care, or the failure to act as a reasonable and prudent person would under similar
circumstances. Both these defences are based on reasonable foreseeability. In terms of
foreseeability, the question is not whether a similar event has occurred before, but whether the risk
that this particular mishap may occur is foreseeable. Thus, a flood, earthquake, hurricane, or other
natural force need not have previously struck a particular location for negligence to exist. Liability
may still exist if reasonable design, construction, operation, inspection, or maintenance.
For a plaintiff to recover damages, this action or failure must be the "proximate cause" of an injury,
and actual loss must occur. In cases of joint causation, where both human negligence and act of
God have a role to play, the traditional sine qua non ("but for"), substantial factor, or legal
causation tests apply. If the act of God is so overwhelming that its own force produces the injury
independent of the defendant's negligence, then the defendant will not be liable. If the damages
suffered are incurred solely due to natural causes without any known fault, there is no liability
because of the act of God. There are two ways of viewing this situation. The act of God either
supersedes the defendant's negligence, or the defendant's negligent act is not a cause in fact of the
injury. In either case, the defendant's act did not cause the damage since the injury would have
occurred anyway. The party injured in the accident may be entitled to damages. An act of God,
however, is so extraordinary and devoid of human agency that reasonable care would not avoid
the consequences; hence, the injured party has no right to damages. Accidents caused by tornadoes,
perils of the sea, extraordinary floods, and severe ice storms are usually considered acts of God,
but fires are not so considered unless they are caused by lightning.

CASE LAWS