Defence of Act of God (Force Majeure/Vis Major)

Law and You > Law of Tort > Defence of Act of God (Force Majeure/Vis Major)

The word “Tort” is of a French origin which has been further derived from the Latin word “Tortum” meaning “to twist” and implies conduct which is tortious⁴or twisted. It is a species of civil injury or wrong. A tort is a wrongful act or an infringement of a right (other than under contract) leading to legal liability and for which civil courts award compensation. Section 2 of Limitation Act 163 defines it as ‘a civil wrong which is not exclusively the breach of contract or breach of trust’. For example, to stop or obstruct a person to perform his legal right is a tort. (Case Ashby v. White), In this article, we shall discuss the concept of tort and law of tort. In tort law, a defence is a legal justification or excuse that a defendant may raise to avoid liability for committing a tort (a wrongful act). These defences either negate the elements of the tort or justify the defendant’s actions under the circumstances. In this article, let us discuss defence of act of god (force majeure/vis major).

Different Defences in Tort Law:

In tort law, several defences are available to a defendant who is being sued for a tort. These defences can either completely absolve liability or reduce the amount of damages. Here’s a list of common defences in tort:

Consent (Volenti Non Fit Injuria): If the plaintiff consented to the act that caused the harm, the defendant may not be liable. Consent can be express or implied.
Self-Defence: A defendant can avoid liability by proving that the tortious act was necessary to protect themselves from harm. The force used must be reasonable and proportionate to the threat.
Defence of Others: Similar to self-defence, a defendant may claim they acted to protect someone else from harm. Again, the force used must be reasonable.
Defence of Property: A person is allowed to use reasonable force to protect their property. However, the force must be proportional and not excessive.
Necessity: This defence applies when a tortious act was done to prevent greater harm to the defendant, others, or property. For example, trespassing to escape an imminent danger may be excused under necessity.
Statutory Authority: If the defendant was acting under statutory authority (i.e., following the law or legal procedures), they may be excused from liability, even if harm resulted.
Contributory Negligence: If the plaintiff’s own negligence contributed to their injury, they may be barred from recovering damages (in jurisdictions that still recognize contributory negligence as a complete defence).
Comparative Negligence: Similar to contributory negligence, but in this case, damages are apportioned based on the relative fault of the plaintiff and defendant. The plaintiff’s recovery may be reduced but not entirely barred.
Act of God (Force Majeure): A defendant may avoid liability if the harm was caused by an extraordinary natural event (such as a flood, earthquake, or storm) that was unforeseeable and unavoidable.
Inevitable Accident: This defence asserts that the incident causing harm was unavoidable, even with reasonable care, and therefore, the defendant should not be held liable.
Mistake: A defendant may argue that the tortious act was the result of a mistake, but this defence is generally weak unless the mistake was reasonable and unavoidable.
Private Defence: A person may defend themselves or their property against the wrongful acts of others, provided the defence is proportionate to the threat.
Duress: A defendant may claim they were forced to commit a tort due to the threat of harm, making their actions involuntary.
Illegality (Ex Turpi Causa Non Oritur Actio): If the plaintiff was involved in illegal activity at the time of the tort, the defendant might avoid liability on the basis that a claim cannot arise from the plaintiff’s wrongful conduct.
Limitation Period (Statute of Limitations): A claim in tort must be brought within a specified time period. If the plaintiff files the claim too late, the defendant can raise the limitation period as a defence.

Each of these defences has its own criteria and conditions, and their applicability depends on the jurisdiction and the specific circumstances of the case.

Act of God (Vis Major)

Act of God (Vis Major) is a defence in tort law used by a defendant to escape liability by claiming that the damage or harm was caused by natural forces or events beyond human control, such as floods, earthquakes, hurricanes, or other natural disasters. It absolves the defendant from responsibility because the event could not have been foreseen, prevented, or mitigated even with reasonable care. For example, suppose a tree is uprooted during a violent, unexpected storm and falls on a car parked near a house. If the storm was of an intensity that could not have been foreseen or prepared for, the homeowner may invoke the Act of God defence against a claim for damages from the car owner.

Key Ingredients of the Act of God Defence:

Natural Forces: The event causing the harm must be a natural phenomenon, such as a severe storm, earthquake, flood, volcanic eruption, or other natural occurrences. These events must be extraordinary and not influenced by human activity.
Unforeseeability: The natural event must be unforeseen and could not have been predicted with reasonable care. If the event was foreseeable (even if unlikely), the defence may not apply.
Unavoidable and Uncontrollable: The event must be unavoidable and beyond the control of the defendant. Even if the defendant exercised all possible precautions, the harm could not have been prevented. The defendant must prove that no human intervention could have stopped or mitigated the consequences of the natural event.
No Human Involvement: The defence only applies when the cause of the damage is purely natural, without any contribution from human actions. If human activity played a role, even indirectly, the Act of God defence is unlikely to succeed.

Limits to the Act of God Defence:

Foreseeability and Preparedness: The defence does not apply if the event was foreseeable and the defendant could have taken steps to prevent or mitigate the harm. For example, if a business in a flood-prone area is damaged by a flood, the business owner might not be able to invoke the Act of God defence if they failed to implement reasonable flood prevention measures.
Contribution of Human Actions: The Act of God defence only applies if the damage was caused entirely by natural forces. If human actions (e.g., negligent construction, poor maintenance) contributed to the damage, the defence will fail. For example, if a building collapses during an earthquake but the collapse is partly due to substandard construction, the defendant may still be held liable.
Reasonable Care: Even in cases of natural disasters, the defendant must show they took reasonable care to minimize the risks associated with such events. Failing to take adequate safety measures (e.g., not securing property during a storm) can undermine the defence.

Application of the Defence:

Natural Disasters: Events like earthquakes, tsunamis, volcanic eruptions, and tornadoes are often considered Acts of God because they are natural, catastrophic events beyond human control. If these events cause damage, the defendant may be excused from liability if they can show they could not have foreseen or prevented the harm.
Floods and Storms: Floods and storms can be classified as Acts of God if they are of an unprecedented or exceptional nature. However, if flooding or storm damage was predictable, especially with modern weather forecasting, the defendant may not be able to rely on this defence.
Other Natural Phenomena: Events such as lightning strikes, landslides, or snowstorms can also fall under the Act of God defence if they occur suddenly and without warning, and if the damage was unavoidable despite taking reasonable precautions.

Case Laws:

In Nichols v. Marsland, [1876] 2 Ex.D 1 case, where the defendant owned a series of artificial lakes. After an unprecedented and extraordinarily heavy rainfall, the lakes overflowed, causing significant damage to nearby properties. The court ruled in favour of the defendant, holding that the flood was an Act of God because the rainfall was so extraordinary and unforeseen that no human foresight or care could have prevented the overflow.

Rylands v. Fletcher, (1868) LR 3 HL 330 (as an exception) is the famous case which established the strict liability rule for dangerous things kept on land that escape and cause damage. However, the court noted that liability might be avoided if the damage was caused by an Act of God. In this case, the Act of God defence was not applicable, as the harm was due to human negligence in constructing a reservoir, but it established that Acts of God can absolve liability under the rule of Rylands v. Fletcher.

In Greenock Corporation v. Caledonian Railway Co., [1917] UKHL 3 case, where the local authority constructed artificial works to change the course of a natural stream. After an unusually heavy rainfall, the stream overflowed, damaging the railway company’s property. The court held that the rainfall, though heavy, was not an Act of God because it was not extraordinary or unprecedented. Since human activity (altering the stream’s course) played a role, the defence of Act of God failed.

In Carstairs v. Taylor, (1871) LR 6 Exchequer 217 case, where water from a roof tank escaped due to damage caused by a rat. The escaping water damaged goods stored in the plaintiff’s warehouse. The defendant, the owner of the building, argued that the damage was caused by an Act of God (the actions of the rat). The court accepted this defence, as the escape of water due to a rat’s actions was considered an unforeseeable and natural occurrence.

The Act of God defence is a powerful tool in tort law, used when the harm or loss is caused solely by natural events beyond human control, such as severe weather or natural disasters. To successfully invoke this defence, the defendant must prove that the event was extraordinary, unforeseeable, and unavoidable, and that they took reasonable care to prevent harm. However, if human actions contribute to the damage or if the event was predictable, the defence may not be available. Courts will closely examine the nature of the event and the defendant’s conduct to determine whether the defence applies.

Conclusion:

The “act of God” defense in tort law serves as a vital doctrine that absolves defendants from liability when an unforeseen natural event causes harm. Defined as extraordinary and uncontrollable occurrences—such as floods, earthquakes, or storms—this defense emphasizes that liability should not attach when a defendant could not have reasonably foreseen or prevented the event.

This principle reinforces the notion of fairness in tort law, recognizing that individuals and entities cannot be held accountable for consequences stemming from events beyond their control. It encourages responsible risk management and preparedness, urging parties to consider potential natural hazards in their operations.

However, the application of this defence is not without challenges. Courts must carefully assess the nature of the event, its foreseeability, and whether the defendant took reasonable precautions to mitigate potential harm. In some cases, distinguishing between an act of God and human negligence can complicate legal determinations.

Ultimately, while the act of God defence provides a necessary safeguard for defendants against liability for extraordinary natural events, its successful invocation depends on a careful examination of circumstances. This balance reflects the broader principles of justice and accountability within tort law.