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

In general, a tort is an act or omission that leads to injury or harm to another party. The term "tort" is derived from the Latin word "tortum," meaning wrong or twisted. Torts do not include breaches of contract, and the remedy for torts typically comes in the form of damages or injunctions. Torts can be broadly categorized into three types: negligence, intentional torts, and strict liability.

In negligence, it is essential to establish several key elements: the existence of a duty of care, a breach of that duty, causation (both proximate and actual), and the resulting harm. Intentional torts, on the other hand, involve deliberate harm, with some also constituting criminal offenses, such as assault or defamation. Strict liability differs from other torts as it imposes liability without regard to intent or negligence, especially in cases involving abnormally dangerous activities.

As noted by Winfield and Jolowicz, if a plaintiff cannot prove the necessary elements of a tort, their claim will fail. Even if these elements are proven, the defendant can rely on specific defences to avoid liability. Among the broader defences is Vis Major or Act of God, a Latin term meaning a superior or inevitable force of nature that can absolve a party from liability for harm caused.

Understanding Vis Major as a Defence

Vis Major or Act of God refers to an inevitable natural event that cannot be anticipated or prevented, thus absolving the party from liability. In legal terms, it signifies an unavoidable accident that exonerates a party from responsibility because the event could not have been prevented by any means.

This defence is applicable in situations where harm results from an event entirely without human intervention, and the event is so extraordinary that it could not have been predicted or avoided. Notably, when Vis Major is invoked in breach of contract cases, it can relieve a party from liability for not fulfilling contractual obligations due to such inevitable events.

Case Law on Vis Major

The landmark case of Rylands v Fletcher set a precedent for the Act of God defence, as recognized by Blackburn J. In this case, the plaintiff’s mines were flooded when a reservoir built by the defendant burst due to old shafts that unexpectedly gave way. Blackburn J. held that the defendant could avoid liability if the flooding was caused by an Act of God or the plaintiff's fault.

The principle from Rylands v Fletcher was further upheld in Nichols v Marsland. Here, the defendant owned artificial lakes that overflowed due to unprecedented heavy rains, washing away four bridges. The court ruled that the defendant was not liable because the heavy rains were unforeseeable, and thus an Act of God.

Modern Interpretation and Limitations

While courts traditionally determined what incidents qualify as Acts of God, recent advancements in technology have limited the unpredictability of certain events, leading to a more restrictive application of this defence. For instance, although the Indian courts have not officially classified the COVID-19 pandemic as an Act of God, the Supreme Court’s interpretation in The Divisional Controller, KSRTC v. Mahadava Shetty suggests that an Act of God includes all-natural events free from human intervention, provided they are not reasonably foreseeable.

In a related case, Lakeman v Pollard, a worker left before his shift ended due to a cholera outbreak. The mill owners sued him for breaching his contract. The Supreme Court of Maine ruled that the cholera outbreak was an Act of God, absolving the worker of liability.

Conclusion

Vis Major, or Act of God, is a defence rooted in the occurrence of inevitable, unpredictable, and unforeseeable natural events that happen without human intervention. While parties might attempt to use this defence to escape liability, its application is limited to prevent unwarranted advantages. The key to invoking Vis Major lies not in whether the event could be predicted, but in whether it could be reasonably anticipated through human foresight and prudence.