Introduction to ‘ Vis Major’ (Act of God) as a Defence to Torts

In general terms a Tort can be defined as an act or an omission of an act that leads to some sort of injury or harm to the aggrieved party, the word ‘Tort’ finds its roots from the Latin term ‘Tortum’ which means wrong or crooked generally. It is important to note that the term tort does not include breach of contracts and the remedy for torts is usually acquired in the form of damages or an injunction. Torts can be classified into three distinctly broad categories of negligence, intentional torts and strict liability. In order to constitute the tort of negligence its important to identify several markers that are associated with the tort of negligence, primarily there needs to be a duty of care governed by the reasonable person principle and once that is established one must cause a breach of such existing duty of care and then one needs to identity the causation which can be further classified into proximate and actual cause and then establish the harm that has been caused due to the negligent act or omission.[1]

In case of Intentional torts the malefactor needs to cause some intended harm to the aggrieved party and some of these intentional torts can also be criminal in nature such as assault, defamation and others. The theory of Strict Liability is very distinct from the other forms of torts because regardless of negligence or intent it establishes liability in abnormally dangerous cases to remedy the harm as a form of public policy.

According to Winifield and Jolowicz a person who institutes an action against another accusing that someone of a tort but is unable to prove the necessary ingredients of that tort will inevitably fail in their action, and even if the person can prove the ingredients the defendant can rely on a specific principle of defence to absolve themselves of liability and the defences that have a more broader and generalized scope are called general defences.[2]

Vis Major or Act of God comes under the general defences and is a latin term which in its literal translation would mean a superior force or an inevitable force of nature that cannot be avoided and under such circumstances might severe the liability of a harm caused. According to legal parlance Vis Major signifies and inevitable accident that absolves a party of all liability because such an act could not have been prevented by any means and hence no one can be held accountable for the harm that arises out of such an inevitable accident.[3]

Act of god as a defence can be applicable in situations where an act that results in harm and damage to a party without any human intervention and such an inevitable action cannot be predicted or avoided by any human means, it is important to note that in cases where an act of god defence is applied the damage and havoc wreaked is considerable and in cases of breach of a contract it can be used to avoid liability for act or omission promised in a contract.[4]

The landmark case of Rylands v Fletcher serves as a precedent in reference to Act of God as Blackburn J. first gave it recognition in his judgement of this case. In the above mentioned case the plaintiff’s mines were flooded by the bursting of a reservoir that the defendant had constructed to provide water to his mill but the reservoir burst because some old shafts that were assumed to be covered gave way which in turn led to the flooding of the plaintiff’s mines. So after observing the facts of the case Blackburn J. pronounced in his judgement that the defendant could absolve themselves of liability by proving that the harm was caused due to the plaintiff’s default or the flooding was a consequence of an Act of God or vis major.[5]

The principle that was established in the case of Rylands v Fletcher was relied upon in the case of Nichols v Marsland, wherein the defendant owned a couple of artificial lakes which were made by damming up the natural course of a stream and due to unforeseeable heavy rains the lakes overflowed and the resultant floodwater washed away four bridges for which the claimant instituted the legal proceedings, but it was ruled that the defendant could not have predicted the heavy rains which were an inevitable act of nature and thus cannot be held liable for the resultant damage.[6]

The courts decide what incidents fall under the ambit of an Act of God but in recent years the courts restrict the application of this defence in most cases because advancements in technology in this ear limits the unpredictability of certain events and not because strict liability is necessary. In the current scenario the Indian courts have not officially recognized the pandemic as an act of god but by interpreting the judgement of the Supreme Court in the case of The Divisional Controller, KSRTC v. Mahadava Shetty one might come to the conclusion that Act of God includes any and all acts resulting from natural forces that are free from human intervention with the exception that not all natural acts can grant one immunity from liability if they are reasonably foreseeable.[7]

Under similar situations in the case of Lakeman v Pollard wherein a worker left before his shift ended due to a cholera outbreak and the mill owners instituted an action against him on the grounds that he breached his contract by not completing his work. In this the Supreme Court of Maine decided that the cholera outbreak fell under the ambit of an Act of God and hence the worker cannot be held liable for the breach of his contract.[8]

The gist of Vis Major or an Act of God it is just not the positive intervention of superior forces that absolves one of liability but more importantly that it is an inevitable, unpredictable and unforeseeable actions of superior forces that occur without human intervention. Contractual parties might seek to benefit off acts of gods but the defence of vis major is very limited in scope to avoid giving someone an unnecessary advantage of escaping liability. The essential ingredient to avail the defence of vis major is not that the act could be reasonably predicted but whether reasonable human foresight and prudence can anticipate such an occurrence.

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References

[1] Srishti Chawla, Negligence in Law of Torts, IPleaders, (April 4, 2019),https://blog.ipleaders.in/negligence-in-the-law-of-torts/

[2] W.V.H. Rogers, Winifield and Jolowicz on Tort 418-523 ( 15th edition, Sweet&Maxwell, 1998)

[3] Keis George, Introduction to Act Of God defence, Lexology,( August 18, 2017), https://www.lexology.com/library/detail.aspx?g=387a346d-a535-4092-aafb-537ea1212c1a

[4] Volume 6, A Treatise of Legal Philosophy and General Jurisprudence, 16-030-16-033,( 2nd edition, Enrico Pattaro, 2007)

[5] Rylands v Fletcher, UKHL 1, LR 3 HL 330 (1868)

[6] Nichols v Marsland, 2 ExD 1(1876)

[7] The Divisional Controller, KSRTC v. Mahadava Shetty, 7 SCC 197(2003)

[8] Lakeman v Pollard,43 Me 463 (1857)

Author Details: Aporva Shekhar (KIIT School of Law)