Act of God | You and the Law

By Dr. William Para Riviere

May 6, 2013

It is a defence to an action for negligence that the damage to the Claimant was caused by an "act of God". It is for the person raising that defence, that is to say, the Defendant, to persuade the Court accordingly. If that defence succeeds, the Defendant is absolved from blame and will not be held liable for any damage caused by the "act of God" in question.

Now, what, legally speaking, is an "act of God"? The concept is not so easy to define. In the English case, Greenock Corporation v. Caledonia Railways (1917), Lord Shaw of Dumfermline drew attention to this when he said: "I am not extremely satisfied that that expression (damnum fatale) or the equivalent expression, "act of God", will ever be capable of complete, exact and unassailable definition". And he went on to say that "The nearest approach which the law has made to that point is in the judgement of Lord Westbury L.C. (Lord Chancellor) in Tennent". The case, Tennent v. Earl of Glasgow, went before the Court in 1864, that is to say, more than 50 years earlier. Lord Westbury had in that case defined an "act of God" as an event or occurrence born of 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". Twenty years later, in Forward v. Pittard (1785), Lord Mansfield was moved to describe it merely as "something in opposition to the act of man". Almost a century thereafter, in Nichols v. Marsland (1876), it was held that an occurrence could be classified as an "act of God" only "if it could not be reasonably anticipated or guarded against." And in R. v. Commissioner of Sewers for Essex (1889), the classification was said to apply only "if the event could not be anticipated or guarded against."

In the landmark Greenock Corporation case, referred to above, the House of Lords approved Lord Westbury's definition in the Tennant case. And, in J. & J. Makin Ltd. v. London and North Eastern Railway Company (1943), Lord Green recognized to be an "act of God" an event that is "so unprecedented and unexpected that human agency would not reasonably anticipate it or be bound to take any steps to meet it." Essentially, the wording had over the years been tinkered with here and there, but the substance has remained the same.

It is settled law, then, that, to constitute an "act of God" in a legal sense, an occurrence must have four elements. One, it must be caused directly by a process of nature. Two, human action directly or indirectly must play no part in its occurrence. Three, human beings lack foresight such as will forestall its occurrence. Four, no level of precaution by human beings can prevent the event from occurring.

That is to say, the essence of an "act of God" is not so much that it is a phenomenon caused by a "positive intervention" of the forces of nature. Rather, it is an event caused by a "process of nature not due to the act of man". What this means is that the critical question 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.

The legal effect of the classification of an occurrence as "an act of God" is that persons who suffer injury or loss do not have a good claim for damages. As was stated in the Tennant case, these occurrences "do not involve any legal liability." In other words, they are "calamities which do not involve the obligation of paying for the consequences that may result from them".

Among the more popular candidates for qualification as "acts of God" are earthquakes, hurricanes and tornadoes, cloudbursts, lightning, high winds, high tides, frost, and extraordinarily heavy rainfall. As to earthquakes, hurricanes, tornadoes, cloudbursts and lightning, case law as to whether or not they are "acts of God" is not readily available. But, on the footing of the above definition, there seems little reason to suspect that they are not.

That is not the case in respect of high winds. In Cushing v. Walker & Sons (1941) His Lordship Justice Hallet had this to say: "Before wind can amount to an "act of God" … the wind must not be merely exceptionally strong, but must be of such exceptional strength that no one could reasonably be expected to anticipate or provide against it."

In respect of high tides, Justice Branson, in Greenwood Tileries Ltd v. Clapson (1937), observed as follows: "I do not think it is possible to say that this tide was so high and unexpected and incalculable as properly to fall within the definition of an act of God". Chief Justice, Lord Coleridge had made the point earlier in R. v. Essex Sewers Commissioner (1885): "It is obvious that, as soon as it was shown by experience that a tide of the height of that recorded in March 1874 might occur, the danger of its recurrence was a danger that could be foreseen in the future, and might be guarded against, whether it could have been foreseen in the past or not, and consequently that the owners of the sea-walls were bound to foresee and provide against it." In that case, high tides had smashed sea walls and caused damage to property.

The question as to whether frost qualifies as an "act of God" arose in an early English case, Siordet & Another v. Hall & Others (824-34). The facts were that a ship's broiler overheated and cracked, causing water to find its way into the hold of the ship and ruin the cargo. The Defendant's submission was that the "mischief", namely, the overheating and cracking of the boiler was caused by an "act of God", that is to say, the action of frost. Chief Justice Best, in rejecting the submission, explained: "Everyone knows that frost will crack iron, and that, if water be contained within it, it is the more liable to do so. The question, then, is whether by the custom or usage applicable to steam vessels, the master is justified in keeping the boiler full of water in frosty weather, two days before the vessel starts, or whether the owner of the goods on board are to suffer merely because it might occasion the master a little extra trouble to let the water out of the boiler on a frosty evening and fill it the next morning."

In respect of extraordinarily heavy downpours of rain, as those which caused the collapse of the Pond Cassé public road, two decided cases will serve to make the point. The first is the Greenock Corporation case, referred to earlier. On the facts, the Corporation decided to build a concrete paddling pool for children in the bed of a stream. To do so, it changed the course of the stream; in that way the natural flow of the stream was obstructed. Following this, rainfall of "extraordinary violence" occurred, causing the stream to overflow at the pool. As a result, a huge amount of water which would normally have been carried off by the stream, poured down a street of the town and caused damage to property. The Corporation pleaded in defense that the heavy rains constituted an "act of God". The Law Lords rejected the submission and found the Corporation liable. Lord Finley put it this way: "... Of this I am very clear, that a great fall of rain and consequent accumulation and weight of water is not a damnum fatale which exempts the proprietor from liability for the failure of his operation-for it is against such accumulation and weight of water that he is bound to provide".

The other decision is Walcott v. The Attorney General (1978), a Jamaica Supreme Court case. The facts are on point with the Pond Cassé matter. A truck loaded with goods was driven on the public road one night during excessively heavy rainfall. The road got filled with water. Unknown to the driver, a bridge over a stream ahead of him had been washed away. The truck fell into the stream.

But, in Court, the Claimant did not do what needed to be done. He ought, properly, to have called evidence to prove negligence by the Highway Authority. Instead, he relied on a doctrine which comes into play when the cause of the damage done to the Claimant is not known. That omission proved fatal. The Court accepted the common law position, namely, that the Highway Authority, represented by the island's Chief Technical Officer, has a duty of care and, because of this, might be held liable for "doing work on the highway without taking reasonable care for the safety of other users of the highway." But, in the same breath, it held that "evidence was required to prove negligence." The Claimant failed to do so, and the Highway Authority was held not liable. Quite importantly, it should be noted that the law is one thing, evidence to take advantage of the law is quite another.

What, then, of the Pond Cassé disaster? Does Government have a duty of care to users of the Pond Cassé public road? Is so, was that duty breached? If it was, was the injury and loss to the affected national footballers caused by the collapse of the public road? Did the collapse come about as a result of heavy downpours of rain? Would "act of God" be a sustainable defence?