SYMBIOSIS INTERNATIONAL DEEMED UNIVERSITY

Defence Of Act of God (VIS MAJOR)

VS
Defence Of Inevitable Accident
-A comparative analysis

Submitted by
Rithvik Gundavarapu
Name: G. Rithvik
PRN:21010324138
Division: D
BBA LLB (2021-2026)

In December 2021
Under the guidance of

K. SHANTI
Torts professor
 Table of Contents

Chapterization
Chapterization Pg.
no
Abstract, Research 3
Methodology
Research Objective, Torts 4

Main aspects of torts, Nature 5

of torts
Important Elements of Torts 6

Research Questions, Defence 7

Act of God 8
 Abstract

Act of God and Inevitable accident are different but they share few similarities
between them. These both are caused naturally and cannot be predicted by
humans. These two defences are used to expel those innocent citizens from
liability who have been unjustly incriminated with claims incriminated on them
with the help of following case studies.

Research Methodology
 1. Doctrinal Research methodology is the choice adopted for carrying on
this research. Doctrinal research is described as a research method that is
often considered as "normal judicial research.1

2. Doctrinal Research is one of the most common and fundamental legal

research methodologies. It is also known as pure Theoretical Research,
which involves easy research in which the primary purpose is to find a
particular statement of that law.

3. The main Key points under this methodology include collecting facts,
identifying legal problems, identify applicable Laws, referring thru Legal
Libraries, case laws and legal resources, summarising the facts and legal
issues in the context and reach a studied conclusion.

Objective

The prime objective in this research is to obtain basic knowledge on the

Act of God and Inevitable Accidents. This research is aimed at getting a
clear view and insight into the differences and characters between the Act
of God and Inevitable Accidents. I have identified and studied research
papers and journals connected to this subject and followed a few books
established in the law of torts, especially Ratanlal& Dhirajlal.

TORTS

1
Black’s Law Dictionary
The word ‘tort’ is derived from the Latin term Tortum, which means to twist
and implies twisted or turned. It is also the French equivalent of the English
word ‘wrong’ and the roman law term ‘delict’. As per Meriam Webster
Dictionary, Tort is defined as a wrongful act other than a breach of contract for
which relief may be obtained in the form of damages or an injunction. The
victims will be compensated for any loss caused by the lawbreaker’s violation
and prevent them from making the same breach in the near future. But not every
evil or wrongful act is a Tort. According to John Salmond, “tort is a civil wrong
for which the remedy is a common-law action for ascertained damages, and
which is not entirely the breach of a contract or breach of a trust, or others
merely equitable obligation.”2

MAIN ASPECTS OF TORTS

1. A tort is a civil wrong that defies the legal right of an independent person
or a group.

2. A tort is separate from a breach of contract or breach of trust.

3. The remedies available to the tort victim are an injunction to obstruct

further harm and compensation for loss or damages that the party has
suffered.

4. Torts are created mainly by the common law, and it gives claimants the
right to sue for compensation and safeguards people from wrongful
conduct by others.

Nature of torts

2
Salmond, John W. (John William), Sir, 1862-1924. Salmond on the Law of Torts. London :Sweet &
Maxwell, 1973.
 1. Under English law, a Tort is twisted or crooked and not straight. A tort is
a civil wrong in which you acquire unliquidated damages from the court.

2. A Tort is a breach of a right in rem and infringement of a right in

personam.

3. The cardinal principle in the Law of Torts is to claim compensation for an

award of damages in tortious claims.

Important elements of torts

The most crucial element of a tort is safeguarding the interests of that person
whose right has been violated and can later recover compensation for the loss he
suffered from the party who has violated the same.
However, that person cannot claim nor be protected whenever they face losses.
Thus, it should hold the balance whenever there is a protected interest dispute.
To form a tort or civil injury, (1) a person shall commit a wrongful act, (2)
Legal damages must arise from the wrongful act, (3) Remedies should be civil
action for those damages and also it could be an injunction.

 Wrongful Act: When a party fails to perform his legal duty and, as a
result, causes loss to the victim. Such acts are immoral, illegal, and
breach of duty. The act can be committed either intentionally or
negligently.

 Legal Damage: Legal Damage and damages are two different terms.
Damage means injury to the person or his legal rights has been injured.
Award of Damages mean an amount of money awarded by the court to
compensate for the damages for the aggrieved party. The plaintiff’s
responsibility is to substantiate whether a wrongful act has been done by
the defendant, which caused a breach of duty. In a case when there is no
infringement of a legal right, the court cannot take action against the
defendant even though the Damage was caused to the plaintiff.
  Damnum sine Injuria: It means Damage without an injury. The Damage
caused to the other person is not functional in-law Unless there is an
infringement of a legal right, just a damage would not be actionable Tort.
Hence, the plaintiff will receive no compensation unless there is a
violation of legal rights.

 Injuria sine damno: An injury without Damage. There is an

infringement of a legal right, but the plaintiff has not suffered any loss or
Damage. Thus, It is actionable in a court of law even though no damage
occurred since there is an infringement of legal right of the Plaintiff.

 Legal Remedy: ‘ubi jus ibi remedium’, meaning where is a legal right
there is a legal remedy. It means that where there a legal right, there has
to be legal remedy for breach of such Right. There will be a moral or
political wrong, and if there is no legal right, then there is no wrong.
Legal Remedy arises for a civil action for damages caused by the
defendant to the Legal right of the Plaintiff.

‘Tort’ - Defined
The word ‘Tort’ is variously defined as follows:
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 merely equitable obligation – Salmond3
Tort is an act or omission (not merely the breach of a duty arising out of
personal relations, or undertaken by a contract which is related to harm suffered
by a determinate person, giving rise to a civil remedy which is not an action of
contract. – Pollock4
Tort is an act or omission which unlawfully violates a person’s right created by
law and for which the appropriate remedy is a common law action for damages
by the injured person. - Burdick5

3
Salmond, John W. (John William), Sir, 1862-1924. Salmond on the Law of Torts. London :Sweet &
Maxwell, 1973.
4
The Law of Torts by Frederick Pollock, the Blackstone Publishing Company, 1887
5
Burdick's Law of Torts
Research Questions
1. What do you mean by Defence?
2 . What do you mean by the Defence of the Act of God and Inevitable
Accident?
3. What is the difference between the Act of God and the Inevitable
Accident?

Defence:
The term ‘Defence’ means a plea put forward by the defendant contra to the
plaintiff’s claims. General Defences are the rules of immunity which limit the
liability in a case of Tort. These are the conditions which, if existing, will
prevent an act from being wrongful or a Tort. The defendant can avoid his
liability by taking the appeal of the Defences available under the General
Defences. The Defences available under torts is as follows:
 Volenti non-fit injuria: when the plaintiff intentionally suffers harm, the
defendant will face no liability as the plaintiff has consented to that
wrongful act. Hence, Defendant cannot be sued by the plaintiff.

 Act of God: It is a type of inevitable accident in which only natural

forces will take part in causing Damage. For Example, Earthquakes,
Tsunami, heavy rainfall, Landslides etc.

 Inevitable Accident: Any unpredicted injury or an accident that is not

avoidable despite taking necessary precautions by the defendant is known
as an Inevitable Accident.

 Mistake: There are two types of mistakes—mistake of Fact and Mistake

of Law. The conditions under these both cannot be available to the
defendant. Under mistake of belief, in some situations, Defendant may
use the Defence of mistake to nullify his liability under the criminal law
but not under the Law of Torts.
  Statutory authority: If the act is authorized by the Statutory law, which
was passed by the legislature, it will take no action against the defendant
under such act.

 Private Defence: The use of this force is justified for the intention of self-
Defence. To protect one’s life and property, the Law has given
permission and has allowed the use of equitable force to safeguard
himself and his property.

 Necessity: An act done intentionally to prevent more significant harm is

not applicable and behaves like a good Defence.

Defence of Act of God

Act of God or Vis Major or Force Majuere is a good defense that can be used
by the defendant to sageguard himself from the liability. It is a type
of Inevitable Accident with a minor difference, in case of Act of God the
resulting loss arises due to the functioning of external forces like exceptionally
heavy rainfall, Landslides, Earthquakes, Lightning etc. 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.

"The act of God" means something overwhelming, and not merely an accidental
circumstance." The learned author also refers to the fact that in recent cases a
stricter view has been adopted, and attention is invited to the statement of Lord
Shaw accepting Lord Westbury's definition of the term as "circumstances which
no human foresight can provide against and of which human prudence is not
hound to recognise the possibility."

To a similar effect is a passage in Charlesworth on Negligence, at page 244. He

defines "an act of God" as equivalent to 'damnum fatale' in Scottish Law which
was defined by Lort Westbury in --'Tennent v. Earl of Glasgow', (1864) 2
Macph. (ct. of Sess.) (HL) 22 (F) in the passage already extracted and concludes
that, to be an "act of God" the occurrence in question must be due to natural
causes exclusively, of an extraordinary nature, and such that it could not be
anticipated or provided against.

Defence of Inevitable Accidents

Inevitable Accident or alternatively called Unavoidable Accident is one which
could not be avoided despite every reasonable care, caution, effort and skill
applied to prevent such incident. As opposed to the Act of God, an Inevitable
Accident is an incident involving commission or omission of a human act which
are independent of Causes of Natural forces and which occurred despite the
reasonable care, caution, efforts and skills applied to prevent such occurrence.
The term Inevitable accident means and it is used to describe incidents where
accidents occur by chance due to reasons beyond the control of a person despite
due care and caution and in the absence of any form of negligence or human
error.
An inevitable accident is an incident that occurs without the concurrence of the
will of the man and in spite of all efforts on his part to prevent it. It means, an
incident which is physically unavoidable and which is something which cannot
be prevented by human care, caution, skill or foresight.
The important elements constituting the Defence of Inevitable Accident thus
are;
a. Occurrence of an incident causing injury to a person;
b. Incident having a human element;
c. Incident has not occred intentionally;
d. Incident was unavoidable despite due care, caution, efforts and skills of
the defendant.
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 current day situation however, Inevitable Accident is not taken as a good
defence so easily. Strict interpretation is made of this factor as a Defence
against Tort. The scope and ambit of Inevitable Accident as a General Defence
has now shrunk considerably and it has lost its utility to a large extent. This can
be observed in the case of A Krishna Patra v. Orissa State Electricity Board6
where it was held that Inevitable Accident is not a valid defence in a case of
accidental death due to electrocution. Since transmission of Electricity is a
dangerous activity, the principle of strict liability was applied herein.

Inevitable accident is a good defence if the defendant can substantiate that the
accident occurred despite his due care, caution and efforts, that the there was no
negligence on his part and there was no intent on his part to hurt or injure the
affected person.
Important cases on inevitable Accidents
Minu R Mehta Vs Balkrishna Ramchandra Nayan7
The law is well settled that every mechanical defect or failure which cause or
results in an accident cannot be attributed to an 'act of God' or be termed as
'inevitable accident'. In order to succeed in a defence that the accident was due
to a mechanical defect, the owners have to prove that they had taken all
necessary precautions and kept the vehicle in a road-worthy condition and that
the defect occurred in spite of the reasonable care and caution taken by the
owner of the vehicle. In order to sustain a plea that the accident was due to the
mechanical defect the owners must raise a plea that the defect was latent and not
discoverable by the use of reasonable care. If it is established that in spite of
reasonable care, the defect remained hidden the owner would not be liable.
Hidasi vs Hidasi
In this case, the plaintiff is the wife and the defendant is the husband. Both
husband and wife were traveling along a mountain road. The defendant was
well aware of the slippery road so took all the precautions. He was traveling
below 100kmph. But somehow the car lost the balance. The defendant pulled
the emergency brakes which couldn’t stop the car and the car hit the near
barrier, injuring the plaintiff. The plaintiff sued the husband stating that he was
rashly driving and didn’t take the precautionary measures. The defendant took
the pleading of an inevitable accident. The court accepted the defence stating
that the car lost the control because of the mechanical failure which was totally

6
A Krishna Patra v. Orissa State Electricity Board (1998) ACC 367, 1998 ACJ 155
7
Minu R Mehta Vs Balkrishna Ramchandra Nayan, AIR 1977 SC 1248
out of the scope of the defendant. In the case, the defence of an inevitable
accident was accepted by the court.
Brown versus Kendal
The plaintiff’s and the dogs of the defendant were battling, they were beaten by
the defendant in order to divide them, and the complainant was watching. The
defendant inadvertently stabbed the plaintiff in the eye, causing him to suffer a
serious injury. In an action brought by the appellant, it was held that the
defendant’s action was a valid and legal one- proper act in itself, which he did
by proper and secure means; and that if he mistakenly hit the plaintiff in doing
this act, it was the result of a pure mistake, and thus, no action can lie in the eye
and wound him.
Shridhar Tiwari v. U.P. State Road Transport Corporation
As the U.P.S.R.T. bus arrived near a village, a cyclist unexpectedly arrived in
front of the bus. It had rained and there was a wet lane. The bus careened on the
road as the driver applied brakes to save the cyclist, resulting in the rear portion
of this bus entering the front portion of another bus coming from the opposite
direction. It was noticed that at that time, both buses were driven at a reasonable
speed and, notwithstanding the reasonable care on the part of the drivers of both
buses, the accident happened. The accident was held to have happened due to an
unforeseen accident and, thus, the defendant Company was not held responsible
for the same on the ground of negligence.

Vedantacharya v. Highways Department of South Arcot

A public transport vehicle plunged into a stream as the culvert over which it was
passing gave way. As a result of the accident one V. Santhangopalan died. The
report of the Assistant Engineer (Highways), Vridhachalam explained the
causes for the collapse of the culvert but gave no indication of any action that
was taken to prevent such occurrences. Surely, heavy rain and flood are not
beyond the contemplation and anticipation of the Highways Department and
when bridges and culverts are constructed it is expected that the department
shall make suitable provision for strengthening the culverts and bridges against
heavy rain and flood. The report gives no indication of any anticipatory action
taken by the Highways Department to prevent such happenings. Supreme Court
held that merely because the cause of the accident was heavy rain and flood,
Highways Department cannot on that account alone claim to be absolved unless
there is something further to indicate that necessary preventive measures had
been taken anticipating such rain and flood. There is nothing to indicate that any
such anticipatory action was taken in the present case. Since the Highways
Department failed to prove any such anticipatory action, it was not a case of
inevitable accident and hence, the Highways Department was held liable.

Defence of Act Of God vs Defence of Inevitable Accident

Inevitable accident is a General defence against the liability of Tort. Inevitable
Accidents may occur due the play of natural forces on which a human person
does not have any control; or by way of existence of human agency. For the
sake of clear demarcation, the first category of Inevitable Accident is termed as
Act of God and the second category is refereed to as inevitable Accidents.
While every Act of God is an inevitable Accident, every inevitable Accident is
not an Act of God.
While Act of God is a subset of Inevitable Accident and apparently similar, they
are two very different sets of General Defence against the liability of Tort.
The Act of God refers to the damages caused due to the severe, extreme and
unforeseen acts occurring due to the play of forces of nature. No human
intervention is involved in such damages.
On the other hand the inevitable accident refers to the incidents involving
commission or omission of a human act which are independent of Causes of
Natural forces and which occurred despite the reasonable care, caution, efforts
and skills applied to prevent such occurrence.

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.
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 genus and Act of God is a branch of it.
vii. Strict liability can be imposed on the tortious liability occurred due to
inevitable accidents.

Act of God also called 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 branch of Inevitable Accident.
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.

Conclusions and suggestions

There is a difference between an act of God and inevitable accident as
inevitable accident occur by the intervention of human agency as well as the
nature forces while an act of God occurs without any intervention of human
control and occurs only naturally. Inevitable accidents when handled with
utmost care and cautions, they can be prevented while an Act of God cannot be
prevented. Strict liability and negligence as tortious liability can come under
inevitable accidents when look upon the case deeply. On the other side,
Damages which are resulting from an act of God are not enforceable to anyone
as a defendant does not owe a liability to the plaintiff if the jury is finding that
this is the case of an act of God.

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. Is it still viable? How might
it apply as a defence to tort?
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. 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.

Biblography

1. The Law of Torts by Ratanlal & Dhirajlal, (28 th Edition) LexisNexis

publications.
2. www.JSTOR.com
3. www.scribd.com
4. www.lawyersclub.india
5. www.scconline.com