Inevitable Accident Vis Major

INEVITABLE ACCIDENT

An inevitable accident or "unavoidable accident" is that which could not be possibly prevented by the exercise of ordinary care, caution and skill.

An inevitable accident is one which the

defendant could not have avoided by the use of the kind and degree of care necessary to the exigency under the circumstances.

Brown v. Kendall, 60 Mass. (6 Cush.) 292 (1850)

Facts A dog owned by Brown was fighting with

a dog owned by Kendall . Brown stood behind Kendall while Kendall attempted to separate the dogs with a stick and sustained personal injuries when the stick struck him in the eye. Brown brought an action of trespass against Kendall for assault and battery.

The trial court instructed the jury that if the

defendant was performing a necessary act or one which was his duty to perform, and was doing it in a proper way, then he would not be liable provided he was using ordinary care. The trial court further instructed that if the act was not necessary and Kendall did not have a duty to separate the dogs, he was liable for Brown’s injuries unless he was exercising extraordinary care and the accident was inevitable. However, Brown could not recover in any case if he himself had not been exercising ordinary care to avoid the injury.

The trial court further instructed that if Kendall had

a duty to interfere, then Brown had the burden of proof to show both negligence by Kendall, and that Brown had used ordinary care to avoid the injury. If the act was not necessary, Kendall had the burden to show that he had exercised extraordinary care or that Brown had not used ordinary care in avoiding the injury. The trial court refused the alternative jury instructions offered by Kendall and the jury entered a verdict in favor of Brown. Kendall appealed

ISSUES Who has the burden of proof to show that the defendant was not using ordinary care? Can a party be liable in trespass without a showing of negligence or fault on the party of that party?

Holding and Rule The plaintiff has the burden of proof to show that the defendant did not use ordinary care No. A party is not liable in trespass without a showing of negligence or fault on the part of that party.

Cause of action in trespass will lie when

one receives injury from the direct act of another. A party will not be liable however if a purely accidental injury arises from his lawful acts.

Standard of Ordinary Care The standard of ordinary care is

determined on a case by case basis. It is that kind and degree of care which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger.

In this case Kendall was doing a lawful

act and unintentionally injured Brown. Brown cannot recover unless he can prove that Kendall was negligent.

Rintoul v. X-Ray and Radium Industries Ltd

In the case of Rintoul v. X-Ray and Radium

Industries Ltd the Defendant attributed the accident to a sudden failure of the vehicle’s brakes. The Court found the Defendant liable as there was no evidence that the vehicle was properly maintained or inspected prior to the accident. Further, there was no evidence to explain why the brakes – which were working properly immediately before and after the accident – failed momentarily at the time of the accident. Last, the Court found that the emergency hand brake was not in good working order which prevented the Defendant from bringing the vehicle to a stop and may have otherwise allowed him to avoid the collision.

Supreme Court of Canada Rintoul v. X-Ray and Radium Industries Ltd., [1956] S.C.R. 674 While driving a car owned by his employer,

the respondent company, O. stopped at an intersection for a traffic-light. His service brakes worked properly. The traffic-light having changed, he proceeded and saw that the line of traffic ahead of him was at a standstill. The appellant’s car was at the rear of this line of traffic.

At about 150 feet away from the appellant’s

car, O. applied his service brakes and found that they did not work. When his car was 50 to 75 feet from that of the appellant, he applied his hand brakes. This reduced his speed from 12 m.p.h. to 6 m.p.h. but did not stop his car which struck the rear of the appellant’s car. The trial judge accepted the defence of inevitable accident and dismissed the action. This judgment was affirmed by the Court of Appeal without written reasons.

The respondents have failed to prove two

matters essential to the establishment of the defence of inevitable accident: (1) that the alleged failure of the service brakes could not have been prevented by the exercise of reasonable care on their part and (2) that, assuming that such failure occurred without negligence on their part, O. could not, by the exercise of reasonable care, have avoided the collision which he claimed was the effect of such failure.

On the first matter, the respondents have made no

attempt to prove that the sudden failure could not have been prevented by reasonable care on their part and particularly by adequate inspection. They called no witness to explain why the service brakes which were working properly immediately before and immediately after the accident and passed satisfactorily the test prescribed by the regulations, failed momentarily at the time of the accident. Furthermore, they have made no attempt to show that the defect could not reasonably have been discovered

As to the second matter, they have failed to show

that O. could not have avoided the accident by the exercise of reasonable care. If the hand brakes had been in the state of efficiency prescribed by the regulations, O. could have stopped his car before the collision occurred. At the least, the unexplained failure to comply with the regulations was evidence of a breach of the common law duty to take reasonable care to have the car fit for the road. APPEAL from the judgment of the Court of Appeal for Ontario, affirming the judgment at trial.

Gibbons v. Pepper The defendant pleaded that his horse became

frightened and "ran away with him so that he could not stop the horse," that the plaintiff ignored his warning "to take care," and that the horse thus ran over the plaintiff "against the will of the defendant." In substance, this was a plea of inevitable accident. Gibbons thus holds that inevitable accident should be raised by pleading the general issue when the substantive nature of the plea amounts to a complete denial of causal responsibility. The Gibbons court put the "runaway horse" on a par with the hypothetical case of A using B's hand to strike C, and treated both as denials.

Holmes v. Mather The defendant's horses while being

driven by his servant on a public highway ran away from a barking dog and became unmanageable that the servant could not stop them, but could, to some extent guide them. While trying to turn a corner safely, they knocked down and injured the plaintiff on the highway. It was held that the action was not maintainable since the servant had done his best under the circumstances.

Fardon v. HarcourtRivington

The defendant parked his saloon motor car in

a street and left his dog inside. The dog has always been quiet and docile. As the plaintiff was walking past the car, the dog started jumping about in the car, smashed a glass panel, and a splinter entered into the plaintiff's left eye which had to be removed. Sir Frederick Pollock said: "People must guard against reasonable probabilities but they are not bound to guard against fantastic possibilities[18]" In the absence of negligence, the plaintiff could not recover damages.

Krishna Patra v. Orissa State Electricity Board Krishna Patra v. Orissa State Electricity

Board where it was held that Inevitable Accident is not a valid defence in a case of accidental death due to electrocution. Since transmission of electricity was a dangerous activity, the principle of strict liability was applied in this case.

The Court further observed: ......We are of the view that an enterprise

which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and nondelegable duty to the community to" ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken......" And "......

We would therefore hold that where an

enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principles of strict liability under the rule

Stanley vs. Powell In this case, the defendant and plaintiff

were part of a shooting party that went hunting, the defendant shot at a pheasant but his bullet glanced off an oak tree and hit the plaintiff. The court ruled that the act was an inevitable accident and the defendant had taken all the care that is expected of a reasonable prudent man.

Shridhar tiwari vs. UP State Road Transport Corp

In this case, a bus driving down the road

suddenly applied his brakes to stop from hitting a cyclist who suddenly swerved into the road. As a result of the rains, the road was wet and slippery and the rear portion of the bus hit the front portion of another bus coming from the opposite direction.

The court ruled that since the busses

were driving at moderate speeds and were driving with prudence expected of a reasonable man. The defendant corporation was not held liable.

The Nitro glycerine case In this case the defendants were a

carrier company. They were delegated with carrying a box. When the contents of the box began leaking they took it back to their office to inspect it. On opening the box the nitro glycerine exploded and damaged the building. The building belonged to the plaintiff.

The court ruled that the defendants

were not liable as there was no way they could have foreseen the contents of the box.

Vis major

Vis major or the act of God but also when all precautions reasonably to be required have been taken, and the accident has occurred notwithstanding.

Vis Major includes those consequences

which are occasioned by elementary force of nature unconnected with the agency of man. Common examples are falling of a tree, a flash of lightening, a tornado or a flood.

Act of God as a defence arises only

where escape is caused through natural causes without human intervention, in circumstances which no human foresight can provide against and of which human prudence is not bound to recognize the possibility

• You had no knowledge or could not do anything to mitigate the damage. • You had no control over it and it happened suddenly. • Due to forces of nature or unnatural circumstances

Constituents of this defence:

The essential conditions of this defence are:

The event causing damage was the

result of natural forces without any intervention from human agency. The event was such that the possibility of such an event could not be recognized by using reasonable care and foresight

Blyth v. Birmingham Water Works Co The defendants had constructed water

pipes which were reasonably strong enough to withstand severe frost. There was an extraordinarily severe frost that year causing the pipes to burst resulting in severe damage to the plaintiff's property.

It was held that though frost is a natural

phenomenon, the occurrence of an unforeseen severe frost can be attributed to an act of God, hence relieving the defendants of any liability.

Ramalinga Nadar v. Narayana Reddiar In the Indian case of theplaintiff had

booked goods with the defendant for transportation. The goods were looted by a mob, the prevention of which was beyond control of defendant

 It was held that every event beyond

control of the defendant cannot be said act of God. It was held that the destructive acts of an unruly mob cannot be considered an Act of God.

Nichols vs. Marsland In this case the defendant created a

series of artificial lakes and built embankments to contain them. One day due to extremely heavy rainfall, the heaviest in human memory, the embankments broke and the water washed away four bridges owned by the plaintiff. The court held that the defendant was not liable as there was an act of god that contributed to the damage.

Negligen ce

Act of God

Act of God, in law, is an accident caused

by the operation of extraordinary natural force. The effect of ordinary natural causes (e.g., that rain will leak through a defective roof) may be foreseen and avoided by the exercise of human care; failure to take the necessary precautions constitutes negligence.

J& J Makin Ltd .v London and North Eastern Railway Co. The defendants were owners of a canal

which crossed a valley at the top of a high embankment. As the result of a violent storm the embankment collapsed and a great quantity of water escaped from the canal into the stream below and was carried down to the plaintiff's mill where it was deposited together with a large number of stones. The plaintiffs in claiming damages said that the act imposed absolute liability irrespective of negligence.

Liability for damage was imposed on the

defendants even if such damage was caused by an act of God.

If the act of God is so overwhelming that its own force produces the injury independent of the defendant's negligence, then the defendant will not be liable. If the damages suffered are incurred solely due to natural causes without any known fault, there is no liability because of the act of God.

There are two ways of viewing this situation 1. The act of God either supersedes the

defendant's negligence 2. The defendant's negligent act is not a cause in fact of the injury

An act of God, however, is so

extraordinary and devoid of human agency that reasonable care would not avoid the consequences; hence, the injured party has no right to damages. Accidents caused by tornadoes, perils of the sea, extraordinary floods, and severe ice storms are usually considered acts of God, but fires are not so considered unless they are caused by lightning.

The relationship between these two defences

is a slightly ambiguous one. Going by logic and definition, these two defences are very similar in nature. In fact, by definition, Vis Major/Force Majeure is considered a type of inevitable accident. However, a careful study of their evolutionary process throws results subscribing to the contrary. These two defences are two distinct forms of escaping liability in tort. They are, in practice referred to as two separate defences instead of one being a subset of the other.

However, in the absence of negligence, Vis

Major appears to be a more valid claim. Having resulted from a severe and drastic natural catastrophe, Vis Major easily has a wider domain. From a philosophical point of view, this is a principle which makes God the defendant hence making the accident truly beyond human control. Au contrarie, Liability might be imposed on a party not negligent on the grounds of the risk involved in the activity they were doing.