Law of Torts

Difference Between Inevitable Accident and Act of God

Submitted by - Submitted to -
Name: Siddharth Jain Dr. Sangeeta
Taak
Roll No.: 18065 Dr. Jaswinder
Kaur
Group No.: 10 RGNUL,
Punjab
 Rajiv Gandhi National University of Law
2018

Acknowledgement

I have taken efforts in this project; however, it would not have been possible to complete
this project without the help and supervision of Dr. Sangeeta Taak & Dr. Jaswinder Kaur.
I would like to thank both the teachers and the college for providing me with the required
resources and help.
I am highly indebted to Dr. Sangeeta Taak for providing me with this enriching
assignment which not only helped me doing rigorous research work but also enhanced
my literary knowledge.
I would express my gratitude to both my parents for being constantly supportive and co-
operative, which helped me in completion of this project.
My thanks and appreciation would also extend to all my classmates who willingly helped
me out with their abilities.

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Contents

1. Research Methodology
…3

2. Objective
…3

3. Torts: -
…4
 Main characteristics of torts
 Nature of torts

4. Defence: -
…7
 Types of defence

5. Act of God: -
…8
 Requisites of act of god
 Landmark cases in act of god
…9

6. Inevitable accident: -
…11
 Landmark cases in inevitable accident
…12

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 7. Difference between Act of God & Inevitable Accident
...14
 Inevitable Accident or Unavoidable Event
 Act of God or Vis Major

8. Conclusion
…15

9. Bibliography
…15

Research Methodology
Doctrinal research is the chosen research method for this study.
Doctrinal research asks what the law is on a particular issue. It is concerned with analysis
of the legal doctrine and how it has been developed and applied. This type of research is
also known as pure theoretical research.
Doctrinal research involves:
1. Systematic analysis of statutory provisions and of legal principles involved therein
derived from.
2. Logical and rational ordering of the legal propositions and principles.1

1
Legal Research Methodology, Rattan Singh

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Objective
The objective of this study is to gain fundamental knowledge in the field of Act of God
and Inevitable accident. This will enable me to learn about the various conditions,
reasons and implications that exist in this field of law. The assignment would provide a
clear picture about what act of god means, what inevitable accident means, what are their
characters and what are the major differences between both the defences. To do this, I
have studied and examined various research papers and journals which are relevant to
this field and I have also taken help of a few notable books based on ‘Law of Torts’
notably R.K. Bangia, N.V. Paranjape and Ratanlal & Dhirajlal.
While working on this project came across a lot of other research papers and publications
which held me in making this project.

Torts
The word ‘tort’ has been derived from the Latin term ‘tortum’ which means twisted and
turned. It connotes any wrongful act or injury which is redressable by an action for
damages at the instance of the person wronged or injured. In fact, tortum is a French
word which in entomological sense connotes a crooked act. Law of torts may precisely be
defined as that body of law which deals with the body of persons against whom an
‘action in tort’ would lie. According to Dr. Winfield, “liability in tort arises from the
breach of duty primarily fixed by the law, such duty is towards persons generally and its
breach is redressable by an action for unliquidated damage.

Main characteristics of torts

1. It is a civil wrong in which legal right of a person is violated or there is a breach
of duty towards him.

2. It is different from a breach of contract or a breach of trust.

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 3. It is redressable by a civil action for damages, and such damages are unliquidated.
The quantum of damages is determined by the court keeping in view the gravity
of the wrongful act, circumstances of the case and conduct of the defendant.

4. In an action for tort, it is not necessary that the plaintiff must have suffered any
pecuniary damages due to wrongful act of the defendant. Mere violation of any
legal right2 of the plaintiff would render the defendant liable to pay the damages.

Nature of torts
Tort is a civil wrong is different from a criminal offence. In an action for civil wrong,
i.e., in tort the aggrieved party is called the ‘plaintiff’ institutes a civil proceeding or civil
suit against the wrong doer which is called the ‘defendant’. The remedy for an action in
tort is damages which means that the plaintiff may recover for the wrong caused to him
by the defendant.

Essentials of Tort
The main element of tort is that the defendant must pay damages to the plaintiff whose
legal rights has been violated. Thus, the law seeks to maintain a balance between legal
rights and legal duties of persons. Breach of person’s legal right has been treated as a
wrongful act under the law of tort, the remedy for which is award of damages. Therefore,
the essential elements of a tort are as follows -:

1. Act or omission -In order to make a person liable, he must have either done
some positive act or made an omission in the performance of his legal duty.
Omission to perform a duty means not doing something that you were legally
supposed to do.
2
This is called injuria in law of torts.

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 2. Legal Damage -To be successful in an action for tort, the plaintiff has also to
prove legal damage. Unless there is violation of a legal right, an action under the
law of torts cannot lie. When there is violation of legal right, it is actionable even
without proof of any damage. But when there is no violation of legal right, no
action lies even though damage may have been caused to the plaintiff.

 Injuria Sine Damnum- It means Injury without damage. It is violation of

a legal right without causing any damage. Since there is violation of
legal right, it can be actionable in a court of law even though no damage
has been caused.
 Damnum Sine Injuria- Damage without injury means causing damage
without the infringement of a legal right. Unless there is infringement of
a legal right, mere causing of damage is not actionable. Therefore, no
action lies when there is damnum sine injuria.

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.”

 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.”

 Winfield –

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 “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.

Defence
Conventionally the word defence is used to refer to those arguments which when used
persuades the court to conclude that the defendant in a case is not guilty. So, they
basically include “absent element defences” which are denials of the components of the
tort that the plaintiff has allegedly committed. Now this can be done in two ways. First
the defendant can deny that the tort was committed or second, the defendant can deny on
the grounds of legal sufficiency in the allegations of the plaintiff, even if a tort has been
committed.3
Some of the defenses which can be used in torts are:
1. Volenti Non Fit Injuria – Intentional acts which are otherwise tortious shall incur
no liability of the defendant if the plaintiff has consented to a wrongful act, he
shall have no right to sue the defendant.
2. De minimis non curat lex – the defendant can also take the plea in his defence that
the act or omission for which the plaintiff has claimed damages against him has
caused so little harm that it is negligible in the eyes of law.
3. Inevitable accident – An event which was bound to occur despite any degree of
care taken by the defendant may be termed as inevitable accident.
4. Act of God – An act resulting out of overwhelming operations of natural forces
such as extraordinary earthquake, rainfall, tempest, volcanic eruption, etc.
5. Private defense – A person can use reasonable force to protect his own body or
his property.
3
“Act of God?” Economic and Political Weekly, vol. 12, no. 25, 1977, pp. 967–968. JSTOR, JSTOR,
www.jstor.org/stable/4365690.

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 6. Mistake – There are 2 types of mistakes: Mistake of law and Mistake of fact.
Mistake of law is generally no defence in the torts. Mistake of fact, however, is a
good defence in the criminal law but not law of torts.
7. Statutory authority – If an act is authorized by the statutory enactment or a law
passed by the legislature, the defendants cannot be held liable for the damages
resulting from such acts.
8. Necessity – It means that causing a smaller harm is always justified to avert a
bigger loss or damage.

Act of God
Act of god or vis major in simple words means an instance of uncontrollable natural
forces in operation. An act of God is a natural hazard outside human control, such as an
earthquake or tsunami, for which no person can be held responsible.
'Act of God' could be an arguable defence to mitigate civil liabilities, especially those
arising out of contract. The 'act of God' defence is based on the tort law principle that
liability must be founded on a fault - and that a person cannot be penalized where the real
fault is that of a 'vis major' - or 'act of God' - where all precautions were taken, and a
casualty still occurred.
'Force majeure' - a superior force that can neither be anticipated nor controlled - is
another defence in cases of accidents. Force majeure connotes a freak of nature of
sufficient velocity and destructiveness to overcome all reasonable preparations and the
occurrence of such events cannot be prevented by human care, skill or foresight. The
Supreme Court has also acknowledged 'act of God' and force majeure as valid defences,
although with certain caveats. In Inacia P Carvalho Vs Desk to Desk Courier and Cargo
Limited, the Supreme Court ruled that 'act of God' and force majeure do not include all
instances to cover up the deficiency in services and negligence. It said that parties to a
contract are expected to show professionalism in performing the obligations of a contract,
and these defences are not acceptable in instances of negligent unprofessional action.
Further, a body of judgments holds that contracts have to make sufficient stipulations
regarding the liability of a party which seeks to wriggle out of obligations citing 'act of
God' or force majeure.
There are 3 requisites for the act of god as a defence i.e.

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 1. The activity should be result of a natural cause.
2. It should be extraordinary in nature, and
3. it should not be within human control.
Federick Pollock calls it as an act caused by natural factors which is completely
unexpected and beyond human imagination and which could not be prevented despite all
care and attention. He termed it as damnum fatale.

Landmark cases for the Act of God

1. Nicholas v. Marsland4 - The defendant had some artificial lakes in his land which
were over-flooded due to extra-ordinary rainfall. It resulted in breakage of
embankments causing heavy damage to plaintiff’s property. The defendant was
not liable as the damage caused was due to extra-ordinary rainfall. Justice Mellish
LJ pronounced, “Now the jury have distinctly found, not only that there was no
negligence in the construction or the maintenance of the reservoirs, but that the
flood was so great that it could not reasonably have been anticipated, although, if
it had been anticipated, the effect might have been prevented; and this seems to us
in substance a finding that the escape of the water was owing to the act of God.
However great the flood had been, if it had not been greater than floods that had
happened before and might be expected to occur again, the defendant might not
have made out that she was free from fault; but we think she ought not to be held
liable because she did not prevent the effect of an extraordinary act of nature,
which she could not anticipate.”

2. Divisional controller, Karnataka Road Transport Corporation v. Mahadevan

Reddy5 - The Supreme Court of India in this case interpreted ‘act of god’ as an act
which results solely from the naural forces. Slightest intervention from a human
would destroy the defence and the defendant shall be held liable.

4
(1876) 2 Ex D 1.
5
AIR 2003 SC 3797

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 3. Greenock Corporation v. Caledonian Railway Corporation6 - The West Burn
flowed in a channel considerably below the surrounding ground which drained
into it and in particular was below the level of Inverkip Road. In 1908, in order to
form a playground for children, the natural channel of the West Burn was altered.
A culvert was constructed and the burn buried. The surface of the park thereafter
sloped down to Inverkip Road, which had become the lowest level and the
channel for surface water which formerly drained into the burn. In addition, the
defendants constructed a paddling pool at the mouth of the culvert which
obstructed the flow of water and it was admitted that those works obstructed
about ‘half the flow of water which would otherwise go down the culvert’.
Flooding occurred in 1909 and then on the occasion with which the action was
concerned in August 1912. Lord Shaw assumed that there was no difference on
the topic between the law of England and that of Scotland. The judgement held:
The appellants had failed to establish any defence: ‘It is true that the flood was of
extraordinary violence, but floods of extraordinary violence must be anticipated
as likely to take place from time to time. It is the duty of any one who interferes
with the course of a stream to see that the works which he substitutes for the
channel provided by nature are adequate to carry off the water brought down even
by extraordinary rainfall, and if damage results from the deficiency of the
substitute which he has provided for the natural channel he will be liable. Such
damage is not in the nature of damnum fatale, but is the direct result of the
obstruction of a natural watercourse by the defenders’ works followed by heavy
rain’.

4. Kallulal v. Hemchand7 - The defence of act of god was denied to the defendant on
the ground that 2.66 inches of rainfall is not extra-ordinary and beyond human
contemplation.in the instant case, the wall of the defendant had collapsed due to
2.66 inches of rainfall, resulting in death of plaintiff’s two children. The court
held the defendant liable to pay damages.

5. T. Gajya Laxmi v. Secretary, P.W.D., Tamilnadu, Madras8 - A live wire got

disconnected due to heavy rains and storm. It fell on a cyclist who was passing
through the road and died due to electrocution. When sued by his legal
6
(1917) AC 556 (576)
7
AIR 1958 MP 48
8
AIR 1997 Mad. 263; on similar facts, the High Court Orrisa also refused to accept the defence of act of
God raised by the Electric Company in Kiranbala Dandapat v. Secretary, grid corp. of India, AIR 1999 Ori.
159

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 representatives, the Electricity Board pleaded that it was act of god as also the
cyclist’s own fault as he should have not come out of his house in such a torrential
storm.

6. State of Uttar Pradesh v. Allied Constructions9- The Supreme Court in this case
accepted the defendant’s plea of act of god and disallowed damages to the
plaintiff because there existed an arbitration clause (i.e., Clause 47) in the contract
between the parties that in the event of any natural calamity such as earthquake,
tempest, volcanic eruption, torrential rainfall, etc. during construction the bridge
and waterfall on Bundakhedi land the party suffering loss will not be entitled to
compensation from the other party.

Inevitable Accident
Inevitable accident may briefly be stated as a mishap which could not have been avoided
by any degree of care that could have been taken by the defendant under the
circumstances in which he was placed. In other words, an event which was bound to
occur despite any degree of care taken by the defendant may be termed as an inevitable
accident.
Some writers refuse to recognize inevitable accident as a defence. In there view it is,
strictly speaking only a denial of liability. For example, in an action for bodily harm, the
plaintiff has ordinarily to prove the negligence or intent of the defendant, and if he fails to
do so, his injury may be said to be an evitable accident. In the case of absolute liability
under Rylands v. Fletcher rule, inevitable accident is no defence unless it assumes the
form of act of god10. This view has been supported by the Supreme Court in its decision
in M.C. Mehta v. Union of India11. The English courts allowed the defence of inevitable
accident to the defendants in a number of cases.
As regards the availability of the defence of inevitable accident, suffice it to say that the
defendant is supposed to guard himself against reasonable probabilities of his act but is
not bound nor expected to guard against probabilities which are not foreseeable in the
mind of a reasonable man. According to Pollock, “it does not mean absolutely inevitable,
but it means not avoidable by any such precaution as a reasonable man, doing such an act
then and there, could be expected to take.”

9
AIR 2004 SC 586
10
Ramaswamy Iyer: The law of torts (7th Ed 1975) p.538
11
(1987) 1 SCC 395

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It is therefore a good defence if the defendant can show that he neither intended to injure
the plaintiff nor could he avoid the injury by taking reasonable care.

Landmark cases for Inevitable Accident

1. Wakemann v. Robinson12 - Justice Dallas C.J. observed that “if the accident
happened entirely without fault on the part of the defendant or blame imputable to
him, the defence of inevitable accident would be available and no action lies.”

2. Holmes v. Mather13 - The defendant’s horses were driven by his servant on a

public highway. The horse all of a sudden became restless because due to barking
of a dog. They became unmanageable and despite all care and best efforts of the
defendant’s servant to control them, they hit the plaintiff and he was injured.
Allowing the defence of inevitable accident, Bramwells J., observed as follows:
“The driver is absolutely free from all blame in the matter; not only does he
not do any wrong but he endeavors to do what is the best to be done under the
circumstances. The misfortune happens through the horses being so startled by the
barking of a dog that they ran away with the groom. Under such circumstances the
plaintiff could not maintain an action.”
3. Stanley v. Powell14 - The plaintiff and the defendant went for pheasant shooting.
When the defendant fired at the pheasant, the shot from his gun glanced off an
oak tree thereby injuring the plaintiff. It was held that the injury was accidental
and therefore, defendant was not liable.

12
1 Bing – 213 (215).
13
(1875) LR 10 Ex 261; see also Manzoni v. Douglas, (1880) 6 QBD 145.
14
(1891) 1 QB 86

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 4. National Coal Board v. Evans15 – The case involved trespass to chattel and the
defendant’s plea of evitable accident was accepted as a defence. In this case,
plaintiff’s predecessors had laid an electric cable under-ground of a municipal
council with their knowledge. The council employed certain contractors to make
the excavations. They were not aware of the under-ground cable and therefore it
was damaged in course of excavations. When sued by the council, the court held
that the defendants were not liable because it was the act of their predecessors that
they wrongfully placed the cable on plaintiff’s land and they had no reason to
suspect or discover the same.

5. Palsgraf v. Long Island Railroad Company 16 - The Plaintiff was standing on a

railroad platform purchasing a ticket, when a train stopped and two men ran
forward to catch it. One of the men nearly fell, and two railroad employees
attempted to help him. In the process, a package containing fireworks fell and the
contents exploded. As a result of the explosion some scales at the other end of the
platform fell and struck the Plaintiff. Plaintiff sued and a jury found in her favor.
The Appellate Division affirmed this decision, but the Court of Appeals of New
York reversed. The Appellate Division of the Supreme Court in the Second
Judicial Department affirmed the trial court’s holding that the Long Island R. Co.
(Defendant) was responsible for injuries to Plaintiff resulting from an explosion.

6. Padmavati v. Dugganaika17 - This is another case were the defence of inevitable

accident was allowed to the defendants and they were not held liable. In this case
two, strangers took a lift in the defendant’s jeep which was driven by his servant.
The bolts of the jeep gave way and the wheel went off the jeep. As a result of this
jeep was toppled causing injuries to both then strangers and subsequently one of
them died. When sued against the master of the jeep and his servant, i.e. the
driver, the court held that it was a sheer accident as there was no evidence to show
that the defect was a patent one and could be detected by periodical checkup of
the vehicle. It was therefore held that the defendants could not be held liable.

7. Fradon v. Harcourt Rivington18 – In this case the defendant parked his car and
went to the market along with his wife to make some purchases. He left his pet
15
1951 2 AII ER 310
16
(1928) 284 NY 339 (USA).
17
(1975) 1 Kant. LJ 93
18
(1932) 146 LTR 391

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 dog inside the car with all the windows and doors properly locked. While the
couple was in the market, the dog suddenly became resistive and broke the
window glass with his paws. As a result of which a piece of glass entered the eye
of a passerby who lost his eye sight. He sued the defendant for negligence. The
evidence showed that the dog did not have any vicious propensity, on the contrary
he had a cool and docile temperament. Lord Dunedin refused to hold the
defendant liable and decided that the mishap was purely accidental and inevitable
because under those circumstances no one would contemplate that such an
incident may occur. Their Lordship observed that a person should be careful
against events which are reasonably possible but not against fantastic possibilities.

Difference between Act of God & Inevitable

Accident
The distinction between inevitable accident and act of god lies the fact that there is
complete absence of human intervention in act of god whereas it is not so in the case of
inevitable accident. Pointing out the distinction between the two, Cockburn C.J. in
Nugent v. Smith observed that an act which takes place solely because of natural factor
beyond human contemplation may be called as an act of god but an act in which some
human activity is fully or partly involved if occurs incidentally, it is inevitable accident.
The distinction between the two may briefly be stated as follows:
i. It is beyond human capacity to prevent an act of God despite all care and
precautions, but an accident which occurs despite ordinary care having been taken
to prevent its possibility is called inevitable accident.
ii. Act of God is the genus whereas inevitable accident, the specie of it.
iii. There is absolutely no control of human agency on act of god, but an evitable
accident is within the control of human agency.
iv. The act of god is an exception to the rule of strict liability (i.e. Rylands v.
Fletcher Rule) but it is not so in case of inevitable accident.19

Inevitable Accident / Unavoidable Accident

i. Inevitable accidents may occur by reason of the play of natural forces or by
intervention of human agency or by both.
19
Law of Torts consumer protection law & compensation under other statutory laws by Dr. N.V.
Paranjape, General Defences, pg.42

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 ii. Traffic accident, train accidents, building collapses, etc. are the examples of this
category.
iii. If the utmost care and caution are taken, an inevitable accident can be prevented
or controlled.
iv. A very cautious person can anticipate the inevitable accident.
v. Their effect is limited to one or few persons concerning to that incident.
vi. It is a branch of Act of God.
vii. Strict liability can be imposed on the tortious liability occurred due to inevitable
accidents.
Act of God or Vis Major
i. Acts of God or Vis Major occur without intervention of human agency. They
occur by reason of the play of natural forces.
ii. Storms, earth-quakes, volcanic eruptions, etc. are the examples of Acts of God or
Vis Major.
iii. The modern man has made many major scientific advancements but still is not
able to avoid these catastrophes.
iv. The modern technical know-how can notice the Acts of God before they occur,
but they cannot control them.
v. Their effect Is extraordinary. It affects entire public of that area.
vi. It is a genus.
vii. Even strict liability can also not be imposed in cases of torts arising out of Acts of
God.
viii. The Courts have no discretionary power. They ought to give their judgment in
justifying the defendant’s tortious liability arising out of Act of God.

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

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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.

Bibliography

1. Law of Torts consumer protection law & compensation under motor vehicles act
by Dr. N.V. Paranjape, Central Law Agency

2. Law of Torts by Dr. R.K. Bangia, Allahabad Law Agency

3. The Law of Torts by Ratanlal & Dhirajlal, LexisNexis Publications

4. www.lawnotes.in

5. www.legalservicesindia.com

6. www.JSTOR.com

7. LexisNexis Academic

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