This one might be distasteful for staunch believers, while the non-believers will scratch their head on how to go forward with this one.
For whatever reasons we hold dear to our belief of God’s existence (or not), the law has provided for a defence which allows us to quite literally blame Him for His acts!
Act of God thus happens to be one of the simpler defences to understand. Why that is the case is because the essence of this defence is that the harm is caused by an act/event perpetuated by the forces of nature, which is beyond the control of both the defendant and the claimant.
It is important that in the causing of the resultant harm from the event, there should be no human intervention/human act which causes the harm. There must be a direct causal linkage between the event and the harm cause.
That is tested by what we call the but-for test. This test checks whether the alleged tortuous act (the cause) directly, or indirectly, led to the harm which was so caused (the effect).
So, in the case where the defendant seeks this defence, we will have to check whether between the natural event and harm caused, was there any human act/omission involved, which created the scope of harm to the claimant.
Thus, if X, 80 years old, sends his neighbour Y’s son to the market which was about four kilometres away, knowing that there is a good chance it would rain and Y’s son would fall sick if he got drenched on the way, and sends him without a raincoat (the son is 5 years old and his mom is against ‘Tomplan’ (intended) and other ‘health’ drinks, so the idea bypassed him), X will be liable for the harm caused to Y’s son. That is because he knew there was a natural event to be caused, which he could not stop. But, not only did he also know that Y’s son will fall sick, but did nothing to prevent it and allowed the harm to befall him.
The validity of this defence in the courts has often led laymen to see this as accepting the existence of ‘divine intervention’.
However, to clear this confusion which might have beset you too, let us offer you a simple explanation – the events, generally speaking, which qualify for this defence are natural events like landslides, avalanches, thunderstorms, to name a few.
Now, since a) they are outside the control of man and b) for a simple nomenclature, the defence is called Act of God, as these were traditionally believed to be caused by God. Most of the present-day judiciaries, however, in no way, promote the existence or absence of God due to their secular nature, despite, at the same time, allowing this defence.
Perhaps, during the origins of this defence, the justice systems were still labouring under traditional ideals which led to such nomenclature that has stuck ever since.
For the purposes of the CLAT exam, this debate of divine intervention is not relevant. Remember, you are taking a legally-correct position when you answer, and not a religious one.
Broadly speaking, the defence has two components:
- The event causing the harm should be a natural event, i.e., event occurring out of natural forces, beyond the control of humans.
- The resulting event must be unforeseen. It should not be one where a person could have taken precautions to prevent the harm thus caused.
Finally, and speaking from a legal perspective, the claimant, in case the defendant is held not liable by virtue of this defence, cannot…..sue God. Try not to think about Oh My God (we think you already are, though)…
Act of God is different from Force Majeure. Act of God can be said to be a subset of the latter.
Force Majeure clauses are applicable in contracts and free both parties from any liabilities if a contract cannot be performed due to situations which are mostly out of their control, such as war, famine, government sanctions, heavy rainfall, earthquakes, etc – it thus includes events which are outside the control of the parties involved, but can be caused by any external factor.
Act of God takes into account only events specifically caused by natural forces.
Principle: An act of God is an operation of natural forces so unexpected that no human foresight or skill could reasonably be expected to anticipate it.
- The Nakuldham society was celebrating its 10th Anniversary and arranged for a
concert by a leading musical group. The event was organized in one of the best auditoriums and all the tickets were sold out. On the day of the event, an earthquake floored many buildings including the auditorium. People who had purchased the tickets asked for refund from the Nakuldham Society as the show could not take place.
- The Society must refund the cost of tickets
- The management of the auditorium must refund the cost of the tickets
- The Society or anyone else need not refund the cost of tickets as it is Act of God
- The ticket holders can demand the show to be organized at a later point of time
(c – straightforward application of the principle.)
- Cakespeare had created an artificial lake on his land by damming some natural streams. One day, there was an extraordinarily heavy rainfall, heaviest in history of that area. Due to rainfall the embankments of the lake gave way. The rush washed away four bridges belonging to the plaintiff. Plaintiff claimed damages.
- Defendants were liable.
- Defendants were not liable.
- Defendants were partly liable.
- None of the above.
(b – you might have a question as to whether Cakespeare had constructed the artificial lake properly. Unless stated otherwise, we assume reasonable care was taken. The facts tells you that there was an extraordinarily heavy rainfall, much greater than anything that has happened before. The circumstances were unavoidable, which makes him not liable.
- Carl was hired to fill a city’s reservoir to capacity with rainwater. The region was soon flooded after heavy rains occurred, nearly bursting the reservoir’s dam, killing nearly 20 people, destroying several bridges, telegraph and telephone lines. The resultant damage was estimated to be $200 million. Decide Carl’s liability.
a. Carl is not liable.
b. Carl is liable only to the extent of the damage to the reservoir’s dam.
c. Carl is liable for all damages suffered.
d. It was the duty of the city administration to have proper mitigation methods in place, so it is only due to the administration’s fault this tragedy occurred.
(a – d is wrong because we only have to answer whether Carl’s defence will succeed, which it will.)
- Additional Principle: General Insurance policies usually exclude claims arising out of ‘Acts of God’.
Shiv goes to the countryside, where he has a fishing boat and plans to go fishing at the local lake. A bolt of lightning strikes the iron pole it was tied to, the nylon rope catches fire, which moves towards the boat. The boat had an electric motor, which burst when it caught fire, and destroyed the entire boat. Can Shiv successfully claim the insurance money.
a. Yes, since it was the fire, and not the lightning.
b. Yes, since the lightning did not strike the boat.
c. No, since it was because of the lightning that the boat was eventually destroyed.
d. No, since Shiv should have tied it to a wooden pole. His err in judgement resulted in the fire, so he won’t have any claim.
(c – the lightning was the cause, which indirectly destroyed the boat. A similar case would be if it hit the pier right beside the boat, and the sheer impact destroyed the boat – the effect is indirectly caused, but has a reasonable and significant connect with the cause that is the lightning.)
- Pilgrims congregate at Kedarnath each year in large numbers. They make arrangements well in advance for the same. Mohit is one such person. He has booked 5 tickets for his family and himself, each for Rs. 1500. Unfortunately, a month before he was to embark on his journey, floods and landslides destroyed large parts of Kedarnath and its surrounding areas and they were accordingly closed off, and all trains travelling to its nearest station was cancelled. He was unable to make the journey. After normalcy resumed, he sued Indian Railways to refund him the money for the tickets.
a. IR is liable to provide him new tickets or refund.
b. IR and the concerned authority who closed off the Kedarnath area are jointly liable, the former for the tickets and the latter for closing off the area.
c. IR is not liable since they have the defence of Act of God.
d. IR is not liable since a government institute has to act for the larger welfare of the people and cannot serve individual interests like that of Mohit.
(c – straightforward application of the principle.)
- The wall of a building which had been ravaged by fire was allowed to remain standing. A medium-force wind pushed it down to the ground, killing the son of the plaintiff, who was playing near it. The landowner asserted non-liability because of the intervention of the high-speed wind. Do you think he is liable?
a. He is liable since a person owes a duty of care to his neighbours.
b. He is not liable since the wind, a natural force, was outside his control.
c. He is not liable since the neighbour did not take into account that the wall was unstable and allowed his son to play near it.
d. He is liable since winds are normal occurrences, and he was aware of the fact that the wall was destroyed and was structurally weak.
(d – straightforward application of the principle.)
- Ronan Beating went to Srinagar in December 2014 and planned to stay at a guest house. Snowing was a normal occurrence in the winters, and the guest house was made of wood. Two days before Ronan arrived, it had snowed heavily, and snow accumulated on the roof of the guest house. Almost 40 hours later, Ronan arrived and was checking in at the reception when a part of the roof above where he was standing collapsed and injured him severely. Ronan sued the guest house for damages.
a. Ronan will have a successful claim since the guest house is supposed to ensure the safety of its guests.
b. Ronan will have a successful claim as the guest house had ample time to clear off the snow since it had stopped. The guest house cannot claim the defence of Act of God.
c. The guest house can claim the defence of Act of God since they were unaware that the snowing could cause the roof to collapse.
d. Ronan will not have any claim since it happened to be a matter of chance that he was at that very spot where the roof collapsed.
(b – not only is a guest house supposed to ensure the safety of its guests, it is also to be well aware of the important factors such as the fact that it was made of wood and thus heavy snowing required cleaning of the roof, or at least to check if it required cleaning. The possibility of the roof collapsing was not unforeseen, and the guest house had ample time to prevent. That the roof took over 40 hours to crumble means that it was not an Act of God, but simply the guest house’s inaction which led to it. If it had collapsed during the snowing, then Act of God could be successfully claimed.)
8. Mr. Goebbels had been in possession of artificial lake, formed by the damming up of a natural stream, for many years. A rainfall, greater than anything ever seen broke down the artificial embankments and the rush of water destroyed four bridges, for which the plaintiff, Himmler, sued for damages. Decide Goebbels’ liability.
a. Is liable since he should have taken utmost care taking into account the possibility of heavy rains.
b. Is not liable since he could not have anticipated bridges to be destroyed
c. Is not liable since he could not have possibly anticipated an amount of rainfall that was never seen before.
d. None of the above.
(c – “greater than anything ever seen” puts the rainfall in the ‘rare to no occurrence’ category, which makes the event wholly unanticipated. Not b since it could leave open for persons to assume that he anticipated the rainfall, and not the collapse of the bridges, in which case the defence of Act of God, which depends on the former, would fail.)
- A contractor constructed a concrete paddling pool for children at the bed of a stream, and had to obstruct its natural flow in doing so. Owing to extremely heavy rainfall, the stream overflowed at the pond and a great amount of water, which would have been carried off by the stream, poured down a public street and damaged the claimant’s property.
a. The contractor is wholly liable for the damage caused to the claimant.
b. The contractor is liable to the extent of damages caused in its immediate surroundings and not to structures which lie in a distant public road.
c. The contractor is not liable at all since there was greater rainfall than usual.
d. None of the above.
(a – “obstruct its (water’s) natural flow” and “water, which would normally have been carried off by the stream” indicates that the fact that the pool would overflow could have been anticipated. Had its course not been obstructed and the water was carried off by the stream, no harm would have caused. So, the onus was on the defendant to take precautions against the possible harm in case of even the heavy rainfall which occurred in the instant case. It was their interference which caused the overflow.)
- Additional principle 1: Insurance policies do not cover ‘Acts of God’ or acts arising out of Gross Negligence.
Additional Principle 2: Gross Negligence is different from Negligence to the extent where the guilty party not only does not fulfil his duty of car, but has blatant disregard for others. It involves a certain amount of knowledge, knowing which the defendant chooses to allow an event to occur, that event leading to the harm caused to the plaintiff.
Shordan Welfort is a shipowner. He has insured each of his ships for $2,000,000. One of his ships is a small cargo carrier, while the rest are large cargo carriers. In the age where mass productivity has seen exponential growth, small carriers are out of fashion. Therefore, the small carrier remains largely unused, and does not have a full-time crew. He hires a crew when the ship is to set sail. It is also not maintained regularly, which has resulted in several leaks across the body of the ship. He was aware of these faults but chose to overlook it since it was barely used. On a fateful night, the small cargo ship ran into a storm in the middle of the ocean. It was only due to its leaks that it was not able to withstand much longer. The crew discovered this, but being unable to help it, they jumped into the ocean. They were not too far from shore and managed to swim there. Seeing a good opportunity to make a profit out of the situation, Welfort claimed the insurance money. Simultaneously, the crew claimed damages from Welfort for Negligence, and when they insurance company discovered the issue of Negligence, they rejected his claim.
a. Welfort will not have a claim since it was an act arising out of his Gross Negligence due to the disregard that water levels rise above normal in the ocean, and the leaks needed to be repaired if the ship was to set sail. He will also have to compensate the crew for the same.
b. Welfort will not have to pay anything to the defendants since the storm was an Act of God. But, he cannot claim anything from the insurance company either.
c. Welfort is liable for only simple negligence. Storms are not expected to occur suddenly near the coast and it was an Act of God, so he cannot be said to have complete disregard. His insurance claim will be barred.
d. None of the above.
(a – first, he was aware of the leaks; second, he did nothing to repair it; third, he allowed it to set sail with that knowledge; fourth, the crew was not informed of the leaks, and only discovered it during the storm; even if it is argued that storms do not occur suddenly near the coast, the four points indicates that there was more than mere negligence of not taking adequate care, but having almost a blatant disregard, i.e., he was Grossly Negligent.)