NATIONAL UNIVERSITY OF STUDY &

RESEARCH IN LAW,

RANCHI

Research Paper

On

INEVITABLE ACCIDENT AS A DEFENCE IN TORT

SUBMITTED TO: SUBMITTED BY:

Dr. Subir kumar Amandeep Yadav

SEMESTER - I
 SECTION – B

Table of Contents

DECLARATION..........................................................................................................................3

INTRODUCTION.........................................................................................................................4

MEANING AND DEFINITION.....................................................................................................5

ORIGIN AND HISTORICAL DEVELOPMENT.............................................................................................7

RELATED CASE LAWS………………………………………………………………………………………10

CONCLUSION...........................................................................................................................11
 DECLARATION
I hereby declare that the work reported in this project report entitled “Inevitable Accident as
a Defence in Tort” submitted at National University of Study & Research in Law, Ranchi
is an outcome of my work carried out under the supervision of Dr.Subir Kumar I have duly
acknowledged all the sources from which the ideas and extracts have been taken. To the best
of my understanding, the project is free from any plagiarism issue.
 INTRODUCTION

Inevitable accident is one of the general defences in tort which are as follows necessity, act of
god, mistake, statutory authority, volenti non fit injuria including inevitable accident.

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.
MEANING AND DEFINITION

Inevitable-accident doctrine is a principle of Tort law that says that a person cannot be liable
for an accident that was not foreseeable and that could not have been prevented by the
exercise of reasonable care. Highest degree of caution is not required. It is enough that it is
reasonable under the circumstances. However, the courts rarely use this doctrine at present
and rely instead on the basic concepts of duty, negligence, and proximate cause.

It concerns a situation where a person, exercising due care, diligence and ordinary prudence,
could not have foreseen or avoided an accident. Naturally, the burden of proof lies on the
defendant raising the defence and the test applied is twofold. The collision of the vehicles
must be both, unavoidable and unforeseeable.

It is a popular defence for defendants to deny liability, however, not an easy one to be
satisfied. A defendant must prove that, on the balance of probabilities, he suddenly came
across a situation where he could not have foreseen and avoided what happened. Often, a
defendant argues that, immediately before the collision, he had a blackout because of a
sudden illness or condition. Therefore, he must prove that the illness or condition was indeed
sudden, that he could not do something to avoid the accident and that he did not realize
before the accident that he had that illness or condition which could cause the particular
blackout. It is further necessary to prove that the particular blackout occurred at the specific
time right before the accident and that it was the reason which caused the said accident to
occur.

Cypriot case law on the defence of inevitable accident in the context of road accidents is
scarce. Still, it was raised, interestingly, by a defendant in a very recent case of road accident
at the District Court of Limassol1. The defendant stated that he suffered from a sudden heart
attack or episode and because of that he had a blackout. In support of his defence, he
presented to the Court his medical folder, showing a history of cardiac problems and an
incident of heart attack which happened many years ago. The learned Judge however ruled
that the defendant did not manage to prove that he had indeed suffered a heart attack or
episode at the time right before the accident, neither that the collision was caused by the
alleged blackout immediately before the accident. Hence, the Court rejected the defence of
inevitable accident without examining the legal aspect of the defence by applying the twofold
test as described above concerning whether the accident was unavoidable and unforeseeable.

It would be interesting however to see how the twofold test would be applied in practice in
this case. In my view, even if the defendant managed to prove that he suffered a heart attack
immediately before the accident and that this caused the particular blackout which lead to the
collision, still, the defence could not be raised successfully. This is because of the defendant's
history of cardiac problems and bad health condition. The defendant should perceive his
health condition as a warning. A warning that, at some time, he could face a heart attack and
subsequently a blackout. That could well happen when he was driving. Therefore, it was
foreseeable and could be avoided by not driving. By driving, the defendant undertook the risk
and responsibility that, when a road accident occurred, he would be responsible for the
consequences of his actions, including the compensation of the claimant. I argue therefore
that, with the exercise of reasonable care and skill, the specific defendant, with his individual
health characteristics described above, could have avoided and foreseen the accident.

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.

There was a major shift in the use of inevitable accident as a defence after the rule of strict
liability was evolved after Rylands v. Fletcher[xxvi]. The plea of inevitable accident lost its
utility in cases involving accidents in any enterprise dealing with hazardous substances or
which is inherently dangerous. As laid down in M C Mehta v. Union of India[xxvii],
inevitable accident in any form is no defence to a claim based on the rule of strict liability
which is not subjected to any exception.
 HISTORICAL DEVELOPMENT

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 trespass was
actionable unless the defendant could show that the accident was inevitable. This is however
not relevant anymore. The emerging conception of inevitability can be seen most clearly
in Whitelock v.Wherwell, 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. 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.

In another case, Stanley v. Powell the plaintiff was employed to carry cartridge for a
shooting party when they had gone pheasant-shooting. A member of the party fired at a
distance but the bullet, after hitting a tree, rebounded into the plaintiff’s eye. When the
plaintiff sued it was held that the defendant was not liable in the light of the circumstance of
inevitable accident.

In the case of Fardon v. Harcourt-Rivington 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” In the absence of negligence, the plaintiff could not recover
damages.

The use of an 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.

There was a major shift in the use of inevitable accident as a defence after the rule of strict
liability was evolved after Rylands v. Fletcher. The plea of inevitable accident lost its utility
in cases involving accidents in any enterprise dealing with hazardous substances or which is
inherently dangerous. As laid down in M C Mehta v. Union of India[xxvii], inevitable
accident in any form is no defence to a claim based on the rule of strict liability which is not
subjected to any exception.

Bajaj Allianz General Insurance Co. Ltd., Pune v. P. Manimozhi (2010)1

The appellant Insurance company denied the accident.The Tribunal answered question No.1
in favour of the claimants and held that the accident occurred only due to the careless driving
of the third respondent herein.The Tribunal by relying upon the decision of the Hon'ble
Supreme Court in Premkumari and Others Vs. Prahlad Dev and Others, 2008 (1) TN MAC
115 (SC) held that the appellant Insurance company will have to pay the compensation to the
respondents/claimants and recover the same from the other respondents.In the absence of a
driving licence being possessed by the rider of the two wheeler, the Tribunal erred in
directing the payment of compensation with liberty the to recover.The Tribunal also
considered the deposition of PW-2, who is the occurrence witness and also taking note of the
inconsistency in the deposition of the rider of the two wheeler both before Tribunal as well as
the Criminal Court held that the accident occurred due to careless driving of the third
1
SCC 2010
 respondent.A Division Bench of this very Court in which one of us (T.S.SIVAGNANAM, J.)
was a party considered this very issue and after taking note of the decisions of the Hon'ble
Supreme Court in the case of New India Assurance Co.The Hon'ble Supreme Court in the
case Sohan Lal Passi, referred above took note of the fact that the road accidents in India
have touched a new height and in majority of cases due to rash and negligent driving and
innocent persons become victims of such accidents because of which their dependants in
many cases are in the streets.Their Lordships observed that the question of payment of
compensation in respect of motor accidents has assumed great importance for public as well
as for Courts.A third-party claim arises when a victim of an accident suffers a bodily injury
or death as a result thereof or his property is damaged. Statutory compensation paid to the
next of kin of the victim of an accident may bring to a large number of families the only ray
of light at the end of the tunnel.

Nath Bros. Exim International Ltd. v. Best Roadways Ltd2

It was stated that the fire had suddenly broken out in the adjacent warehouse from where it
spread to the godown where the appellant's consignment was kept and that consignment was also
destroyed. Learned counsel for the appellant has contended that the respondent is a "carrier"
within the meaning of the Carriers Act, 1865 and he is liable for non-delivery of goods to the
consignee at the destination indicated to them.It is contended that non-delivery is indicative of
the negligence on the part of the respondent and the National Commission was not justified in
rejecting the claim petition on the ground that the goods were destroyed by fire.since the goods
were stored in a godown which was adjacent to another godown in which highly combustible
articles were kept by a third person who owned that godown, the respondent was clearly
negligent in keeping the consignment in question, which consisted of silk garments, in that
godown so as to expose them to fire which ultimately engulfed not only the godown where the
combustible material was kept but also the adjacent godown where the appellant's goods were
negligently stored.It is another matter that in the adjacent godown, highly combustible articles
were stored which suddenly caught fire resulting in the loss of the appellant's goods.The outbreak
of the fire was sudden and it could not be controlled in spite of the services of the fire brigade
which were requisitioned by the respondent who had duly informed the appellant not only of the
fact that the goods were diverted at the instance of the consignee but also that they were

2
SC 665 2000
completely destroyed by fire in the adjacent godown which had unfortunately spread to the
godown where the appellant's goods were stored. Learned counsel for the appellant has
contended that under Section 151 of the Indian Contract Act, the carrier as a Bailee is bound to
take as much care of the goods bailed to him as a man of ordinary prudence would, under similar
circumstances, take of his own goods.He is liable even when he is overwhelmed and robbed by
an irresistible number of persons.

Life Insurance Corporation Of India And Another v. Hira Lal.3

Whereas defence of the respondents while contesting the complaint was that since the disease
was hereditary it cannot be termed as an accident within the meaning of policy of insurance,
as such, they are not liable to indemnify the appellant.In our opinion, the meaning of word
'accident' is being interpreted by the respondents to mean that the blindness in case of the
appellant was due to something which was expected and/or was due to any cause attributable
to the appellant himself.As such the only irresistible conclusion based on the legal evidence
as well as the dictionary meaning of the word 'accident', we are of the view that 100%
blindness in case of the appellant is an accident.We reiterate that the blindness suffered by the
appellant was neither designed by him nor was it in any manner attributed to any act on his
own part so as to show that it was not due to any unforeseen or unexpected cause to exonerate
the respondents.The special leave petition is dismissed.

4
National Insurance Co. Ltd vs Swaran Singh & Ors

The liability of the insurance company to satisfy the decree at the first instance and to recover
the awarded amount from the owner or driver thereof has been holding the field for a long
time.

Apart from the reasons stated hereinbefore the doctrine of stare decisis persuades us not to
deviate from the said principle.

It is well-settled rule of law and should not ordinarily be deviated from. (See The Bengal
Immunity Company Limited Vs. the State of Bihar and Others [1955] 2 SCR 603 at 630-632,

3
SCC 2011
4
RH/1087/SCC 2004
Keshav Mills Co. Ltd. Vs. Commissioner of Income-Tax, Bombay North [1965] 2 SCR 908
at 921- 922, Union of India & Anr. Vs. Raghubir Singh (Dead) By LRs. etc. [1989] 3 SCR
316 at 323, 327, 334, M/s. Gannon Dunkerley and Co. and Others Vs. State of Rajasthan and
Others (1993) 1 SCC 364, Belgaum Gardeners Cooperative Production Supply and Sale
Society Ltd. Vs. State of Karanataka 1993 Supp (1) SCC 96, Hanumantappa Krishnappa
Mantur and Others Vs. State of Karnataka [1992 Supp (2) SCC 213].

We may, however, hasten to add that the Tribunal and the court must, however, exercise their
jurisdiction to issue such a direction upon consideration of the facts and circumstances of
each case and in the event such a direction has been issued despite arriving at a finding of fact
to the effect that the insurer has been able to establish that the insured has committed a breach
of contract of insurance as envisaged under sub-clause

(ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be
entitled to realise the awarded amount from the owner or driver of the vehicle, as the case
may be, in execution of the same award having regard to the provisions of Sections
165 and 168 of the Act . However, in the event, having regard to the limited scope of inquiry
in the proceedings before the Tribunal it had not been able to do so, the insurance company
may initiate a separate action therefor against the owner or the driver of the vehicle or both,
as the case may be. Those exceptional cases may arise when the evidence becomes available
to or comes to the notice of the insurer at a subsequent stage or for one reason or the other,
the insurer was not given opportunity to defend at all. Such a course of action may also be
resorted when a fraud or collusion between the victim and the owner of the vehicle is
detected or comes to the knowledge of the insurer at a later stage.

The Oriental Insurance Co. Ltd vs Hansrajbhai V. Kodala & Ors5

The common question involved in these appeals is whether the compensation payable under
Section 163A of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) as per the
structured formula basis is in addition or in the alternative to the determination of the
compensation on the principle of fault liability, after following the procedure prescribed
under the Act? For convenience we would refer to few facts in Civil Appeal arising out of

5
SC 254 2001
S.L.P. (Civil) No.8742 of 1999 in which the judgment and order dated 4.8.98 passed by the
High Court of Gujarat at Ahmedabad in FA No.2473 of 1996 is challenged. Petition claiming
compensation of Rs.
2,50,000/- was filed before the Claims Tribunal on the ground that one bus bearing
registration No. G.J.3T 9815 met with an accident and Mayur, son of respondent Nos. 1 and
2, aged about 6 years died as a result thereof. The claimants also filed an application under
Section 163A of the Act for interim compensation on structured formula basis. The Insurance
Companyappellant contended that as the bus was not insured with it, it was not liable to pay
compensation. The Claims Tribunal granted the prayer of the respondents and directed the
appellant to pay Rs.1,62,000/to the respondents as interim compensation. The appellants
preferred appeal before the High Court contending inter alia that in order to provide quicker
relief to the accident victims, Section 163A was inserted and is not meant for interim
compensation but is an alternative to the determination of compensation under Section 168.

it was reduced to powder without any cementing properties. It is also not the case of the
appellant that there was any earthquake or storm or any other natural event which was
unforeseen and which could have been the cause of the fall of the Clock Tower. In these
circumstances, the mere fact that there was fall of the Clock Tower tells its own story in
raising an inference of negligence so as to establish a prima facie case against the appellant.

CONCLUSION:

The defence of inevitable accident seems to be a gambit more frequently raised by the
defence bar. As the above review suggests, however, it is a difficult defence to mount
successfully. It is our hope that this review will establish the general principles for you, and
flag some recent jurisprudence that may be helpful. The meaning of inevitable accident has
changed as the nineteenth century and will be changed in future.