Law of Torts
Inevitable Accident and Act of God: Two Pleas That Nobody Could Have Prevented It
Both pleas assert that the harm could not have been avoided, and they differ in the cause relied on and in the degree of unavoidability required. Inevitable accident points to any cause, human or natural, and says the defendant could not have prevented the harm by reasonable care and skill. Act of God points to natural forces alone, operating so extraordinarily that no human foresight could have provided against them. The first is in substance a denial that there was any negligence at all; the second is a true defence and a recognised exception to strict liability.
1. The Comparison
Inevitable accident | Act of God, or vis major | |
The cause relied on | Any cause, human or natural | Natural forces alone, with no human intervention whatever |
The test | The harm could not have been avoided by ordinary care, caution and skill on the defendant's part | The event was so extraordinary that no human foresight could reasonably have provided against it |
The degree required | Unavoidable by reasonable care, not by every conceivable precaution | Much higher. The event must be unprecedented, or nearly so |
Its nature | In substance a denial of negligence rather than a true defence | A true defence, and a recognised exception to Rylands v. Fletcher |
Who bears the burden | Effectively the plaintiff, who must prove the breach | The defendant, who asserts the exception |
Against negligence | A good answer, because it negatives breach | A good answer, for the same reason |
Against strict liability | No answer, unless it falls within a recognised exception | A good answer under Rylands |
Against absolute liability | No answer | No answer. There are no exceptions |
Against a tort of strict duty | No answer where the statute imposes an absolute obligation | No answer where the statute so provides |
2. Inevitable Accident
- It is an accident which could not have been avoided by that degree of care, caution and skill which the circumstances reasonably demanded. It does not mean an accident which no precaution whatever could have averted.
- It is not, strictly, a defence at all in an action for negligence. The plaintiff must prove breach; if the accident was inevitable there was no breach; so the plea is a denial of an ingredient rather than an answer to a made out case.
- It retains independent significance where the burden shifts. Where res ipsa loquitur is invoked, or where the tort is one of strict duty, the defendant must explain, and the plea of inevitable accident is how he does it.
- It is no answer to strict liability. The whole point of Rylands v. Fletcher is that the defendant answers although he was not careless, and an accident which was inevitable despite reasonable care is exactly the case the rule was made for: TORT 021.
📖 Stanley v. Powell, [1891] 1 QB 86 Facts The plaintiff was employed to carry cartridges and game for a shooting party. The defendant, a member of the party, fired at a pheasant. A pellet from his gun glanced off the bough of an oak tree at an unexpected angle and struck the plaintiff, injuring him seriously. Held The defendant was not liable. Ratio Where the injury was neither intentional nor the result of negligence, and was caused by an accident which no reasonable care could have foreseen or prevented, no action lies. Liability in trespass to the person, as in negligence, requires intention or want of care, and an inevitable accident is neither. The decision is also the foundation of the modern rule that unintentional and non negligent contact is not a battery. |
3. Act of God
- Two elements must be established: the event must be due to natural causes without any human intervention, and it must be so extraordinary that no human foresight could reasonably have anticipated or guarded against it.
- It is the second element that defeats almost every plea. Rain, wind, heat and flood are natural, but they are also expected, and a defendant must provide against the ordinary operation of the elements in the place where he operates.
- Ordinary heavy rain in a place that receives heavy rain every year is never an act of God, however inconvenient, which disposes of most municipal flooding defences: TORT 106.
- A human agency anywhere in the chain destroys the plea. A mob, a stranger's act, a fire started by a person, a structure that failed because it was badly built, none of these is an act of God even if a natural event was the occasion.
- It is one of the seven exceptions to Rylands v. Fletcher, and one of none to absolute liability: TORT 115.
📖 Nichols v. Marsland, (1876) 2 Ex D 1 Facts The defendant had for many years maintained ornamental lakes on her land, formed by damming a natural stream. An extraordinary rainfall, described in the evidence as greater than any within the memory of the witnesses, caused the embankments to give way. The escaping water swept away four bridges belonging to the plaintiff. Held The defendant was not liable. Ratio The escape was caused by an act of God, being an operation of natural forces which the defendant could not reasonably have anticipated and against which she was not bound to provide. She was not bound to construct her works so as to resist an extraordinary and wholly unexpected flood, and the rule in Rylands v. Fletcher is subject to that exception. |
📖 Greenock Corporation v. Caledonian Railway Co., [1917] AC 556 Facts The corporation constructed a concrete paddling pool for children in the bed of a stream, altering its course and obstructing the natural flow. An extraordinary rainfall occurred. The water, unable to follow its natural channel, overflowed and flooded the railway company's property. Held The corporation was liable. Ratio A person who interferes with the course of a stream must provide against the effect of such extraordinary rainfall as may reasonably be anticipated, and is liable if he does not. It is not an act of God merely because the rainfall was unusual, where the damage would not have occurred but for the defendant's own alteration of the natural state of things. The decision marks the outer limit of Nichols v. Marsland and is the reason that plea now rarely succeeds. |
4. The Relationship Between the Two
- Act of God is a narrow species of inevitable accident. Every act of God is an inevitable accident; most inevitable accidents are not acts of God, because a human cause is somewhere involved.
- The two are distinguished on the source of the event and on the standard of unavoidability. Inevitable accident asks what reasonable care would have prevented; act of God asks what any human foresight could have prevented.
- Their legal effect differs in the one situation that matters. Against a claim in negligence both succeed, because both show there was no breach. Against a claim in strict liability only act of God succeeds, because only it is a recognised exception.
- Neither is any answer to absolute liability, which admits no exceptions at all.
- Neither is any answer where the statutory duty is absolute, as with the fencing of dangerous machinery: TORT 078.
5. What Indian Courts Have Refused to Treat as an Act of God
- An unruly mob or a crowd. Human conduct, however uncontrollable, is not a natural force, and a carrier who loses goods to a mob cannot plead vis major.
- Heavy monsoon rainfall in a monsoon region, since the whole point of a monsoon is that it is expected.
- A flood which a properly designed and maintained drain would have carried, since the cause of the damage is then the state of the drain and not the rain.
- A landslide or a subsidence at a site where the risk was known, since foreseeability of the type of event is fatal to the plea.
- A fire, unless it originated in lightning, and even then only if it could not have been contained.
- An earthquake in a seismic zone where the building code provided for it, since the statutory design standard is itself an admission that the event was foreseeable.
⚠ Why the plea of act of God almost never succeeds, and what a defendant should plead instead The plea has an antique and rather grand sound, and it is pleaded far more often than it is established. The reason is that its two limbs pull against each other. To succeed, the defendant must show that the event was wholly natural, which rules out every case in which anything human contributed; and that it was so extraordinary that no human foresight could have provided against it, which rules out every event of a type that has happened before in that place. Between them the two limbs exclude almost everything, because the natural events that actually cause damage in India, monsoon rain, cyclone, flood, earthquake in a seismic zone, are all events whose general character is known and against which the law expects provision to be made. Greenock Corporation supplies the rule that finishes most pleas: where the defendant has himself altered the natural state of things, he must provide against such extraordinary operation of the elements as may reasonably be anticipated, and the extent of the rainfall becomes irrelevant. The defendant with an unavoidable accident on his hands is therefore usually better served by denying breach, which puts the burden on the plaintiff, than by asserting an exception which he must prove and which the authorities have narrowed almost to nothing. |
6. The Position Stated Shortly
1. Inevitable accident is an accident which could not have been avoided by the care, caution and skill which the circumstances reasonably demanded.
2. It may arise from any cause, human or natural, and is in substance a denial of negligence rather than a true defence.
3. Stanley v. Powell is the leading case: a pellet glancing off an oak and striking a beater was neither intentional nor negligent.
4. Act of God requires natural causes with no human intervention, and an event so extraordinary that no human foresight could have provided against it.
5. It is a true defence and one of the seven exceptions to the rule in Rylands v. Fletcher.
6. Nichols v. Marsland allowed the plea where an unprecedented rainfall burst artificial lakes and swept away bridges.
7. Greenock Corporation v. Caledonian Railway marks its limit: one who alters the course of a stream must provide against such extraordinary rainfall as may reasonably be anticipated.
8. Act of God is a narrow species of inevitable accident, so every act of God is inevitable but most inevitable accidents are not acts of God.
9. Against negligence both pleas succeed; against strict liability only act of God succeeds; against absolute liability neither does.
10. Indian courts have refused the plea for mobs, ordinary monsoon rainfall, floods a proper drain would have carried, and known landslide and seismic risks.