The National law institute university, Bhopal

Project
on

Vis Major as a Defense to Tortious Liability

submitted by
Kritika Goyal
Enrolment Number: A-2368
Roll Number: 2021BALLB71
Ⅰ Semester
B.A.LL.B.(Hons.)

submitted to
Prof. (Dr.) Rajiv Khare
Date of Submission: 15 November 2021
 DECLARATION

I, Kritika Goyal D/o Ajay Goyal Roll Number 2021BALLB71 Enrollment Number A-2368
do hereby declare that the project titled “Vis Major as a Defense to Tortious Liability” is an
outcome of my own independent research endeavor and has been carried out under the
guidance of Prof. (dr.) Rajiv Khare. Literature relied on by me for the purpose of this project
has been fully and completely acknowledged in the footnotes and bibliography. The project is
not plagiarized and all reasonable steps have been taken to avoid plagiarism. Similarity index
as per the Turnitin Report is ____ %. In case, my project is found to be plagiarized, the
course teacher shall have the full liberty to ask me to revise the Project. If I fail to comply
with the instructions of the teacher, my project may be referred to the Committee Against Use
of Unfair Means and I will comply with the decision of the said Committee.

Date:15 November 2021 Name and Signature of the Student: Kritika

Goyal

Place: Guna, Madhya Pradesh Enrolment Number: A-2368

Roll Number: 2021BALLB71

ii
 LIST OF ABBREVIATIONS

WORD ABBREVIATIONS USED

Example Eg
Indian Meteorological Department IMD
Supreme Court SC
That is i.e.
United States of America USA
United Kingdom UK

iii
 TABLE OF CASES

Case Name Page No.

1. Corporation of Greenock v Caledonian Railway Co. (1917) SC (HL) 56 11,12

2. Kallulal v Hemchand AIR 1958 MP 48 12
3. Nichols v Marsland (1876) 2 ExD 1 12,13
4. Rylands v Fletcher 13

iv
 Table of Contents

DECLARATION......................................................................................................................................................... ii

LIST OF ABBREVIATIONS...................................................................................................................................... iii

TABLE OF CASES...................................................................................................................................................... iv

INTRODUCTION........................................................................................................................................................ 1

REVIEW OF LITERATURE......................................................................................................................................... 2

R.K.Bangia, The Law of Torts............................................................................................................................ 2

Idioms.com............................................................................................................................................................. 2

Investopedia.com................................................................................................................................................. 2

Viability of the act of god defense in a superstorm world, by Sarah Quiter.................................2

Differences between act of god and inevitable accident, by Taniya Prusty..................................3

The law case summaries, by Travis................................................................................................................ 3

STATEMENT OF PROBLEM.................................................................................................................................... 3

HYPOTHESIS............................................................................................................................................................... 4

RESEARCH QUESTIONS.......................................................................................................................................... 4

RESEARCH OBJECTIVES.......................................................................................................................................... 4

RESEARCH METHODOLOGY................................................................................................................................ 4

TENTATIVE CHAPTERIZATION............................................................................................................................. 5

CHAPTER 1 – GENERAL DEFENCES.................................................................................................................... 5

CHAPTER 2 – Vis Major: History and Origin................................................................................................... 8

History:..................................................................................................................................................................... 8

Meaning of the phrase:..................................................................................................................................... 8

Interpretation of the phrase:........................................................................................................................... 8

Example:.................................................................................................................................................................. 9

CHAPTER 3 - VIS MAJOR AS ONE OF THE DEFENCE............................................................................... 10

CHAPTER 4 - JUDICIAL INTERPRETATION.................................................................................................... 11

CHAPTER 5 – CONCLUSION AND SUGGESTIONS..................................................................................... 14

BIBLIOGRAPHY........................................................................................................................................................ 15
 INTRODUCTION

The researcher has conducted the research work on the topic “Vis Major as a Defense to
tortious Liability”. The researcher has conducted the conducted the research work to delve
deeper into the concept of vis major and to explore how vis major can be used as a defense by
the defendant to escape the liability which arise because of the wrongful act committed by the
defendant against the other.

The research work has covered the topic in a detailed manner. It has listed out the meaning of
general defenses and the various defenses available for the defendant in law of torts with
special focus on vis major as a defense. The research work has also pointed out the history
and origin and will be helpful in making understanding the term vis major in clear manner.

The researcher has written some important judgements delivered by the court related to the
topic of vis major. Some landmark judgements have also been covered by the researcher in
the research work. These cases have pointed out the interpretation of the courts over vis
major concept over the course of time.

The term vis major has been derived from the Latin language. The literal meaning of term vis
major is “superior or greater force’. The term vis major is made up of two words i.e. vis +
major where vis means force and major means greater. It is also referred as an Act of God. In
USA it is known as vis major. The defense of vis major can be taken by the defendant in a
situation where natural force such as earthquake, volcano, storm is acting up without any
human intervention. It is used in the situation or an event on which human have no control
and that event cannot be avoided even after exercising necessary due care and caution. In
such situations, defendant is not held liable as he cannot predict the happening of such event
and cannot avoid it’s happening even after exercising necessary precautions.1

1
Vatasala Sood,”Act of God (Vis Major) in Tort Law (2020) Legal bites
<https://www.legalbites.in/act-of-god-vis-major-in-tort-law/> accessed 17 October 2021.

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 REVIEW OF LITERATURE

R.K.Bangia, The Law of Torts

This book has helped the researcher in structuring the understanding of the concept of vis
major and helped in deducing numerous vital things related to the concept of vis major. The
book has introduced the meaning of general defenses and its various types. It has helped the
researcher to delve deeper into the concept of vis major. The book has provided the
information and a systematic approach to understand the essential conditions to claim vis
major as a defense. The database covered by this book is enormous and provides the reader
with a clear understanding of the various concepts. The book has explained the topic covered
in detailed manner and helped the researcher to distinguish the vis major as a defense from
the inevitable accident.

Idioms.com
This online resource has helped the researcher to know about the history of the concept of vis
major. It provided the information about the origin of vis major and when and where the
concept was used for the first time. This website has helped the researcher to know about
how the concept of vis major has developed over the course of time

Investopedia.com
This online resource has helped the researcher to delve deeper into the concept of vis major.
It has helped the researcher to know about the meaning of the term vis major. The online
resource has provided the information to the researcher about the interpretation of the clause
of vis major and how it can be used by the defendant as a defense to escape the tortious
liability. It also helped the researcher to understand the concept with the help of an example.

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Viability of the act of god defense in a superstorm world, by Sarah Quiter
The article has helped the researcher to understand the meaning of the concept of vis major in
simple and clear words and also helped in the interpretation of the clause. It helped the
researcher how natural events are covered under the vis major and can be used as a defense.
The article has helped the researcher to understand not every event of natural force is not
covered under the vis major defense and due care and caution need to be exercised.

Differences between act of god and inevitable accident, by Taniya Prusty

This article from the online resource has helped the researcher to understand the difference
between act of god and inevitable accident. It pointed out the pointers of difference and what
are the basis on which these defenses of vis major and inevitable accident are distinguished
so the researcher does not get confused between the two defenses. The article has also
provided the definition of the term inevitable accident.

The law case summaries, by Travis

This article has helped the researcher to know about the various case laws related to the
concept of vis major. It has provided the information about the landmark judgements related
to vis major and helped in understanding the judicial interpretation and understand the
concept in judicial terms. It has provided the detailed information of the case and discussed
the facts and questions of the law and what was held in the case. It has provided the
information in a detailed manner.

STATEMENT OF PROBLEM

With the increase in scientific technologies the relevance of vis major has diminished over
the years as it become easier to forecast the natural event.

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 HYPOTHESIS

But, still, scientific technology cannot recognize all the events as was seen in the case of
COVID -19. The effect of the global pandemic was such that it has been recognized under the
category of vis major in the USA and the UK. Even the Finance Minister Mrs. Nirmala
Sitaraman also termed COVID -19 as an act of god/vis major. Therefore, when such
extraordinary event arise, the defense of ‘vis major stills plays a relevant role.

RESEARCH QUESTIONS

1. What is the liability under vis major?

2. How vis major can be used as a defense to tortious liability?

RESEARCH OBJECTIVES

1. To understand the meaning of vis major.

2. To know about the origin and history of vis major.
3. To understand the meaning of vis major.
4. To understand the vis major as a defense to tortious liability.

RESEARCH METHODOLOGY

The research work has completed in adherence to the doctrinal method of research. The
research has relied on both the primary and secondary sources. This research has relied on the
information related to the subject found in the books, online sources and case laws. The
research is descriptive in nature. It has followed the analytical approach i.e. use the analysis

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of the facts to reach out the conclusion based on the logical reasoning. This research shall
endeavor to review the existing format and establish a relationship with the subject format.

TENTATIVE CHAPTERIZATION

Chapter1: General Defenses

Chapter 2: Vis Major: History and Origin
Chapter 3: Vis Major as a Defense
Chapter 4: Judicial Interpretation
Chapter 5: Conclusion and Suggestions

CHAPTER 1 – GENERAL DEFENCES

Defense means a rule of law which the defendant uses to counteract the rule of law upon
which the plaintiff relies. This type of rule can only apply and is only needed in situations
where prima facie the defendant is liable.

James Goudkamp, the author of “Tort Law Defenses” identifies five understanding of
defenses:

Defenses as ‘denials of elements of the tort in which the claimant sues’.

Defenses as ‘liability-defeating rules that are external to the elements of the claimant’s
action’.

Defenses as ‘principles that diminish the claimant’s relief’.

Defenses as ‘rules in respect of which the defendant carries the onus of proof’.

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 Defenses as ‘the final element of the claimant’s cause of action’.2

When a suit has been brought against the defendant by the plaintiff for a wrongful act
committed by the defendant and all the necessary ingredient has been fulfilled for the
commission of that particular tort , then the defendant is held liable for that particular wrong.
Then even in such a situation, defendant can escape his/her tortious liability by the means of
defenses available in the law of torts.

There are two types of defenses are available under law of torts:

Specific defenses – These defenses under law of torts are available for some specific
wrongs committed by the defendant. For eg. Like in defamation tort defense of truth and
absolute privilege and qualified privilege can be taken.

General defenses – These defenses under law of torts are available for a number of wrongs
like for eg. consent is available as a defense in trespass tort, false imprisonment tort.

The general defenses again got divided into various types:

Volenti non fit injuria

Vis major/act of god

Private defense

Plaintiff being the wrongdoer

Necessity

Mistake

Inevitable accident

Statutory authority

2
James Goudkamp , Tort Law defenses (1st edition , Oxford: Hart Publishing , 2013).

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The research work has mainly focused on the research of the topic vis major as a defense
which can be used by the defendant who committed the wrongful act to escape his/her
tortious liability.3

Many a times people used to get confused between the defense of vis major and the defense
of inevitable accident. Inevitable accident in legal understanding is defined as an accident
which cannot be predicted and cannot be avoided even after exercising due care and caution.
Some differences between the two defenses are:

The effect of vis major in general is on the larger public. But the effect of inevitable
accident the effect is generally on the limited or few persons.

In inevitable accident, courts do not have discretionary powers in determining the

defendant’s liability. But in vis major courts does not have discretionary powers in
determining the defendant’s liability. They ought to give their judgements in justifying the
defendant’s tortious liability arising out of vis major.

Inevitable accident is no exception to strict liability. But vis major is an exception to

strict liability.4

Both inevitable accident and vis major defense appear to be similar to each other but by
comparing the two defenses we can easily notice the differences between the two defenses.
Vis major is also being referred as a subset to inevitable accident. Both can be used as a
defense by the defendant to escape the tortious liability depending on the circumstances that
existed in that situation.

3
R.K.Bangia, The Law of Torts (22nd ed, Allahabad Law Agency, 2010).
4
Taniya Prusty, Difference between an Inevitable Accident and Act of God
<http://www.shareyouressays.com/knowledge/difference-between-an-inevitable-accident-and-an-act-of-god/
115880> accessed 18 October 2021.

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 CHAPTER 2 – Vis Major: History and Origin

History:

This expression was first used to explain a reference made in the bible in Mathew 5:45;

“For he maketh his sun to rise on the evil and on the good, and sendeth rain on the just and on
the unjust.5

In the above lines, ‘he’ refers to the God who is omniscient and can cause anything to
happen.

In the later 13th century, this phrase started appearing in various religious texts and writings.
It then started being used in the insurance and legal circles when discussing acts that are not
the responsibility of any individual or corporation. It first appeared in the ‘Dictionary of
Trade Products’ written by Peter Simmonds - Force Majeure, a French commercial term for
unavoidable accidents in the transport of goods, from superior force, the Act of God , Vis
Major , etc.6

‘The Times’ used this expression to describe a court ruling on treasure by Lord Ellenborough
in July of 1803.

Meaning of the phrase:

The phrase “Vis Major” is sometimes used to attribute an event to divine intervention. It is
often interpreted with a natural disaster or tragic event. It’s usually a natural disaster, such as
a flood or an earthquake or a storm. It is an unfortunate event attributed to divine attention.
Some consider it separate from vis major and being related to fate or destiny.

Interpretation of the phrase:

5
< www.theidioms.com/act-of-god/> accessed 18 October 2021.
6
< www.theidioms.com/act-of-god/> accessed on 18 October 2021.

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Vis major describes an event outside of human control or activity. It’s usually a natural
disaster such an earthquake or a storm or a flood. Insurance policies usually specify which
particular acts of vis major/act of god they cover.7
The phrase ‘vis major’ does not associate with any specific religion or belief system. Vis
major are referred to as ‘force majeure’ clauses in contractual language which are often used
by insurance companies. These clauses are typically remove or limit the defendant’s liability
damage, injury and loss caused to the plaintiff by the acts of god/vis major.
The defense of vis major does not imply liability for damages upon the defendant. The vis
major act are generally unforeseeable and cannot be prevented like earthquake, flood , storm ,
etc. However, reasonable care should have been taken by the plaintiff and he cannot use the
event as excuse for not taking reasonable care to try to prevent or protect against the damage
that can be caused.

Example:

Say a dilapidated warehouse collapses during an earthquake and injuries bystanders. The
owner claims an act of god/vis major caused the building to fall. However, the insurer will
likely deny the claim, and there may be no recourse in court because the owner did not take
reasonable care to maintain the structural integrity of the building.
The government also needs to take steps to take reasonable care to prevent disasters. The
reasonable care and caution need to be exercised by the government. Like the adequate
forecasting of the natural events need to be done by the IMD. Then adequate steps or
reasonable care can be exercised to tackle such events so that such events do not affect the
public at large. Adequate construction of dams and channelization of the dams are such steps
which can be taken to prevent such drastic events like flood.
Say for an example – a state failed to maintain a dam that burst and caused major damage to a
community. This is not an act of god/vis major event. Intense rains may have caused bodies
of water to swell, but the flooding was a direct result of the government’s lack of action to
maintain water retention systems.
In the above example, such event can be avoided after exercising reasonable care and caution.
Therefore, all such events which can be avoided by exercising reasonable care and caution

7
www.investopedia.com/terms/a/act-god.asp> accessed on 18 October 2021.

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does not come under vis major event and the defendant cannot used it as a defense to escape
the tortious liability.
Not all events where superior or natural forces are in action comes under the defense of vis
major. Only the events where is natural forces are in action without any human intervention
and cannot be avoided nor anticipated comes under the defense of vis major and can be used
by the defendant to escape his/her tortious liability.8

CHAPTER 3 - VIS MAJOR AS ONE OF THE DEFENCE

An act of god or vis major or force majeure can be defined as an event in which there is no
control of human beings and which is solely caused by the natural disasters or forces of
nature such as an earthquake, storm, flood, a hurricane, a tornado. Therefore, for such
unintentional damage the defendant will not be liable.

An act of god or vis major is described as a direct, sudden , violent, natural and irresistible act
of nature that could not have been foreseen by any quality of care or, if foreseen, could not be
prevented by any quality of care by any person.9 Vis major is an affirmative defense of
responsibility for cleaning up and/or paying damages and/or incurring penalties resulting
from an extreme natural case.

The two conditions are necessary to satisfy for claiming the defense of vis major –

There must be natural forces at work

The event must be an extraordinary and cannot be anticipated

A vis major has existed since the creation of our planet Earth, since the presence of humanity
we have witnessed natural calamities, including earthquakes, floods, tornadoes, wildfires, etc.
In such cases, lives are lost, properties are damaged, destroyed or substantially damaged
when the forces of nature strike suddenly and severely. Nature’s blow is seriously damaged
and can come as a enormous shock or surprise to the victims of the catastrophe as well as to
the accused or tortfeasors.
8
<www.investopedia.com/terms/a/act-god.asp>accessed on 18 October 2021.
9
R.K.Bangia, The Law of Torts (22nd ed, Allahabad Law Agency,2010 ).

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The defendants are fast in many instances to assert the defense of vis major as a defense
against those instances. There must be an immediate or close clause ( Causa causans ) to
afford the defense of vis major and not just a cause if it had not existed could never have led
to the damage caused or complained of ( causa sine quo non ).

The defendant must prove himself to have done everything that a reasonable and prudent
person could do in such a scenario.10

At the point when a defendant pleads vis major as a defense to the liability, he may deny that
he was to blame. Now and then, be that as it may, the respondent, when he depends on this
defense, denies causation. He may agree that he was careless yet plead that, regardless of
whether he had taken reasonable care, the harm about which the offended party complained
would at present have happened and consequently he ought not to be held blameworthy for
those harms.11

CHAPTER 4 - JUDICIAL INTERPRETATION

1.Corporation of Greenock v Caledonian Railway Co. (1917) SC (HL)56

Facts:
There was a movie display of which the defendant was owner. On one day a
banner fell on the plaintiff from its wooden frame. The frame got struck plaintiff on
his head giving him serious injuries.

Issue:
Whether the climate disturbance on that day amounts to natural catastrophe?

Judgement:
10
Sarah Quiter, “Validity on the Act of God Defense in a Superstorm World” (2017) The Nickel Report
https://www.huntonnickelreportblog.com/2017/10/viability-of-the-act-of-god-defense-in-a-
superstorm-world/ accessed on 19 October 2021.
11
Harshita Swami, Act of God/Vis Major as a Defense to Tortious Liability (2020) Law Column
https://www.lawcolumn.in/act-of-god-defence-for-tortious-liability/ accessed 19 October 2021.

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 It was held that the wind blowing was moderate and there was no intense rain.
This type of weather was foreseeable in monsoon season. It put an end to the plea of
act of god/vis major and it is not granted.

2.Kallulal v Hemchand AIR 1958 MP 48

In this case a building’s wall collapsed one fine day due to rainfall which was of
about 2.66 inches. This incident led to the death of respondent’s children. It was held
by court that the defense of vis major cannot be taken by the appellants because the
rainfall was normal and to plead this defense something extraordinary need to happen.
Therefore, the appellant was held liable12.

Nichols v Marsland (1876) 2 ExD 1

Facts:

There were series of ornamental pools on the land of defendant with huge quantity
of water. One day due to extraordinary heavy rainfall the pool water swells and caused
the lakes to be overflowed which resulted into water flowing on the land of plaintiff and
destroying his property.

Issue:

The court wanted to determine whether the defendant was negligent on his part that
caused damage to plaintiff.

Held:

It was found by the jury that the there was no negligence on the part of defendant in
operating, maintaining, and constructing the lakes. Extraordinary heavy rainfall couldn’t have

12
R.K.Bangia, The Law of Torts: Including Motor Vehicles Act and Consumer Protection Act (Allahabad Law
Agency,2008).

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been anticipated despite reasonable care and precaution. Thus, it was held that entire act loss
to the plaintiff is the result of vis major.13

Rylands v Fletcher (1868) LR 3 HL 330

Facts:

Plaintiff and defendant were neighbour. Defendant owned a mill which has energy
requirements and for the same he built some water reservoirs and gave the work to
independent contractors left them in the same position instead of blocking them up. One day
when reservoir for the first time, it got burst and flooded the plaintiff’s mine, which caused
plaintiff a huge loss.

Judgement:

Defense of vis major wasn’t granted because there was no operation of natural forces.
The court evolved the principle of strict liability.14

CHAPTER 5 – CONCLUSION AND SUGGESTIONS

After vividly analyzing and intense research on the concept of the vis major and other related
topics and subtopics the researcher has concluded that when natural forces are acting up in
the situation without any human intervention which cannot be avoided even after exercising
13
Nichols v marsland < https://e-lawresources.co.uk/cases/Nichols-v-Marsland.php> accessed 20 October 2021
14
Travis, Law Case Summaries <https://lawcasesummaries.com/knowledge-base/rylands-v-fletcher-1868-lr-3-
hl-330/> accessed 20 October 2021

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due care and caution the defense of vis major can be used by the defendant as a defense to
escape the tortious liability.

The resulting loss in vis major results from the activity of natural forces such as extremely
heavy rainfall, storms, tides, volcanoes, tornadoes and some volcanic eruptions. For the
defense of vis major to be claimed, it needs to be proved that there must be a working of
natural forces and the occurrence must be extraordinary and not one which could be
anticipated and reasonably guarded against.

The researcher has analyzed the difference between vis major and inevitable accident. The
history and origin of the concept of vis major has also been talked about in the research work.
The research work has discussed the definition, meaning as well as the interpretation of the
concept of vis major and it can be used as a defense by the defendant.

The researcher has witnessed the problem while conducting the research that the relevance of
vis major has been reduced over the years because of the emergence of scientific technologies
as events can be predicted easily. But still scientific technologies cannot predict all the events
accurately. When an uncertain event occur which cannot be avoided and in pursuance of that
individual commit some wrongful act he/she needs the defense of vis major and in such
situations vis major plays a dominant role and relevant.

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 BIBLIOGRAPHY

ARTICLES:
Nichols v Marsland.
Quiter Sarah, “Validity on the Act of God Defense in a Superstorm World” (2017) The
Nickel Report.
Sood Vatsala, “Act of God (Vis Major) in Tort Law (2020) Legalbites.
Swami Harshita, “Act of God/Vis Major as a Defense to Tortious Liability” (2020)
Law Column.
Taniya Prusty, “Difference between Act of God and Inevitable Accident.
Travis, Law Case Summaries.

BOOKS:
Bangia R.K., The Law of Torts (22nd edition, Allahabad Law Agency, 2007)
Goudkamp James, Tort Law Defenses (1st edition, Hart Publishing, 2013)

WEBSITES:
Idioms.com
Investopedia.com

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