Você está na página 1de 7

LAW OF TORTS

TABLE OF CONTENTS

Acknowledgement
List of Abbreviations

1. Act of God as a general defence (Introduction)5

What is a tort?
Definitions of Tort proposed by various authorities.

2. What is a defence...............................................................................................6

3. Types of defences...............................................................................................7

Specific defence
General defence

4. Act of God as defined by Winfield and Jolowicz..8

Rylands v. Fletcher
Nichols v. Marsland
Greenock Corp. v. Caledonian Railways
Cushing v. Walker & Sons
Greenwood Tileries v. Clapson

5. Conclusion .....................................................................10

Act of God (Vis Major) as a general defence to Tort.

1
LAW OF TORTS

1. What is a tort?

A tort is the French equivalent of the English word wrong and of the Roman law
term delict.
Tort is derived from a Latin word tortum meaning twisted, crooked or wrong.
A tort is simply a transgression from straight or right conduct i.e. a wrong against the
world at large due to some act or failure to do one.
It governs the rights of private parties to obtain compensation from those who have
caused them injuries due to some act or failure to do one.
Tort is a wrong which begins at some act i.e. doing something wrong or omission i.e.
a failure to do something which should have been done. The act or omission leads to
legal injury to a party (the injured) and that party seeks compensation called legal
damages from the party committing the tort (the injurer).

2. Definitions of Tort proposed by various authorities.


Salmond and Hueston-

A tort is a civil wrong for which the remedy is a common law action for unliquidated
damages, and which is not exclusively the breach of a contract or the breach of a trust
or other mere equitable obligation.

Common Law Procedure Act, 1852 -

A tort is a wrong independent of contract.

Fraser-

A tort is an infringement of right in rem of a private individual giving a right of


compensation at the suit of the injured party.

Winfield-
Tortuous liability arises from the breach of a duty primarily fixed by law. This duty
is towards persons generally and its breach is redressable by an action for
unliquidated damages.

3. What is a defence?

The word defence bears several meanings in the tort context and a great deal of
confusion has been spawned of a general failure by courts and commentators to make
their intended meaning clear.
2
LAW OF TORTS

First, it is sometimes used to refer to any argument that persuades the court to find
that the defendant is not liable. So understood, the word defence encompasses
absent element defences. Absent element defences are denials by the defendant of
an element of the tort in which the plaintiff sues. A defendant advances an absent
element defence when, for example, he denies that he is the tortfeasor, denies that his
impugned act was voluntary, denies that he was at fault when proof of fault is
required, or denies that the plaintiff suffered damage when damage is the gist of the
tort in which the plaintiff sues.

In a second and stricter sense, the word defence refers only to rules that, when
enlivened, result in a verdict for the defendant even if all of the ingredients of the tort
that the plaintiff contends was committed against him are present. A defendant
invokes a defence within this meaning of the word when he argues along the
following line: Even if I committed a tort, judgment should nevertheless be entered
in my favour because of rule so and so.
Only affirmative defences count. Affirmative defences include absolute privilege,
abuse of process, arrest, distress, honest opinion, immunity, limitation bars, necessity,
qualified privilege, recapture of land or chattels, res judicata and self-defence. A
defendant who relies on any of these rules seeks to avoid liability not by denying the
plaintiffs allegations but by going around them.

Defence according to Winfield and Jolowicz:


A claimant who fails to prove the necessary ingredients of the particular tort or torts
on which he relies will, of course, fall in his action. Even if he does prove these
ingredients, however, he may still fail if the defendant shows that he is entitled to rely
upon some specific defence. Some of these defences are peculiar to particular torts.
These defences are called specific defences. While other defences are broader in
scope and can be applied by a defendant on a more pervasive scale as a defence to
various torts. These defences are called general defences.

4. Types of defences to various torts:

A. SPECIFIC DEFENCES.
Certain specific defences for particular torts are:

3
LAW OF TORTS

I. Trespass- license, revocation, justification by law, trespass ab initio, re-entry,


ejectment, jus tertii, mesne profits.
II. Nuisance- coming to nuisance no defence, usefulness not in itself a defence, no
defence that is due to many.
III. Strict Liability- consent of the claimant, common benefit, act of stranger,
statutory authority, default of the claimant.
IV. Defamation- privilege.

B. GENERAL DEFENCES.
These defences applied by the defendant, only pertain to specific cases. They do not
apply generally throughout tort law.

I. Volenti Non Fit Injuria.


II. Public Policy. Illegality.
III. Mistake
IV. Inevitable Accident.
V. Act of God.
VI. Private defence.
VII. Necessity.
VIII. Statutory Authority.

However, for this particular project submission, more focus is put on Act of God (Vis
Major) as a general defence to tort.

Vis Major is derived from the Latin words vais maior: vis ( force) + major ( greater)
i.e. an overwhelming force of nature having unavoidable consequences that under
certain circumstances can exempt one from the obligations of a contract.

The term Vis Major is a superior force. In law it signifies inevitable accident. This
term is used in the civil law in nearly the same way that the words Act of God is used
in the common law. Generally, no one is responsible for an accident which arises from
vis major.
Act of God can be understood as a natural catastrophe which no one can prevent such
as an earthquake, a tidal wave, a volcanic eruption, or a tornado. Acts of God are
significant for two reasons.

1) For the havoc and damage they wreak and


2) Because often contracts state that "acts of God" are an excuse for delay or failure to
fulfil a commitment or cause damage to a party for which another might be held
liable.

Act of God as defined by Winfield and Jolowicz:

Where an act is caused (harmful to a party) directly by natural causes without human
intervention in circumstances which no human foresight can provide for and against

4
LAW OF TORTS

and of which human prudence is not bound to recognize the possibility, the Act of
God as defence can be applied.

The Act of God was recognized by Blackburn J. in


Rylands v. Fletcher1. The facts of the case were that B, a mill owner, employed
independent competent contractors to construct a reservoir to provide water for his
mill. In the course of work, the contractors came across some old shafts and passages
on Bs land. They communicate with the mines of A, a neighbour of B, although no
one suspected this for the shafts were appeared to be filled with earth. The contractors
did not block them up, and when the reservoir was filled, the water from it burst
through the old shafts and flooded As mines. Here. Blackburn J. ruled that the
defendant can excuse himself by showing that the escape was owing to the plaintiffs
default or perhaps the escape was the consequence of vis major or the Act of God.

The mill in Bs land for which a reservoir was being created resulting subsequently to
legal injury to A.

The same rule was also applied in Nichols v. Marsland2. In this case, the
defendant for many years had been in possession of some artificial ornamental
lakes formed by the damming up of a natural stream. An extraordinary

1 (1866 L.R.1 Ex. 265 at 280)

2 (1876 2 Ex.D.1.)

5
LAW OF TORTS

rainfall, greater than any in the memory of witnesses broke down the
artificial embankments and the rush of escaping water carried away four
bridges in respect of which damage the claimant sued. Judgement was given
for the defendant that she was not negligent and the court held that she ought
not to be liable for an extraordinary act of nature which she could not
reasonably anticipate.

Whether a particular occurrence amounts to an Act of God is a question of fact, but


the tendency of the courts nowadays is to restrict the ambit of the defence, not
because strict liability is thought to be desirable but because increased knowledge
limits the unpredictable. Taking the case of Greenock Corp. V. Caledonian Ry3, the
House of Lords criticized the application of the defence in Nichols v. Marsland4. The
corporation constructed a concrete paddling pool for children in the bed of the stream
and to do so they had to alter the course of the stream and obstruct the natural flow of
the water. Owing to a rainfall of extraordinary violence, the stream overflowed at the
pond and a great volume of water, which would have been naturally a normally have
been carried off by the stream, poured down a public street, into the town and caused
damage to the claimants property. The House of Lords held that it was not an Act of
God and the corporation was liable. It was their duty so to work as to make
proprietors or occupiers on the lower level as secure against injury as they would have
been had nature not been interfered with.

Similar considerations apply to an extraordinary high wind in Cushing v. Walker &


Sons5 where the judgement was given by Hallett J. that before wind can amount to
an Act of God, the wind must not merely be exceptionally strong, but must be of such
exceptional strength that no one could be reasonably expected to anticipate or provide
against it and extraordinary high tide in Greenwood Tileries v. Clapson6 where
Branson J. gave judgement.

3 (1917 A.C. 556.)

4 Supra fn.2

5 (1941 2 All E.R. 693 at 695)

6 (1937 1 All E.R. 765 at 772)

6
LAW OF TORTS

CONCLUSION

In law, then, the essence of an Act of God is not so much a phenomenon which is sometimes
attributed to a positive intervention of the forces of nature but a process of nature not due to
the act of Man and it is this negative side which deserves emphasis.
The criterion is not whether or not the event could reasonably be anticipated, but whether or
not human foresight and prudence could reasonably recognize the possibility of such an
event. Even in such limited form, however, this defence, like the defence of act of a stranger,
shifts the basis of the tort from responsibility for the creation of risk to culpable failure to
control that risk. This has been criticized on the ground that an accidental
escape caused by the forces of nature is within the risk that must be
accepted by the defendant when he accumulates the substance on his
land.

Você também pode gostar