Acts of God
Throughout the English-speaking legal world, natural disasters like earthquakes and tsunamis are known as acts of God. Acts of God are circumstances and events that are outside of anyone’s control and that cannot be foreseen or guarded against. Acts of God may provide a defence or an exception to civil liability – for example, where a person is unable to perform their obligations under a contract because of the act of God.
Some contracts contain an act of God or ‘force majeure’ clause. A ‘force majeure’ clause stipulates what happens to the obligations imposed by the contract in the event its terms cannot be carried out because of an event that is beyond the parties’ control. For example, a force majeure clause may state that neither party is responsible for failing to perform its obligations under the contract where the failure results from events beyond the party’s reasonable control. A list of the sorts of events that trigger the operation of the clause is often provided. This may include natural disasters or the outbreak of war.
Some force majeure clauses will require a party to give notice of the event relied on to the other party as well as outlining any steps they have taken to recommence the contract. The clause may allow a party to terminate the contract in the event of an act of God.
A party generally cannot invoke a force majeure clause where the circumstance was already in existence at the time the contract was signed. As well as acts of God, force majeure clauses may cover embargoes and abnormal weather conditions, war and strikes.
An act of God can also provide a defence to an action in tort, where the act or omission that forms the basis of the claim was the result of a circumstance that was unforeseeable and could not be guarded against. Where an act of God is responsible for what happened, a party cannot be found liable.
Historically, acts of God have been used to explain phenomena that lacked a scientific explanation. As human knowledge of natural events has expanded, the concept has become less useful and relevant and courts have been less inclined to find that circumstances were unforeseeable and could not be guarded against.
Nichols v Marsland
In the 1876 English case of Nichols v Marsland, the defendant owned artificial ornamental lakes which had not previously caused any damage. During 1872, the lakes overflowed after an unusual fall of rain and the dams gave way, carrying away the county bridges. The jury found there had been no negligence on the part of the defendant as the exceptionally heavy rainstorm had amounted to an act of God, which he could not have anticipated.
Commissioner of Railways v Stewart
In the 1936 Western Australian case of Commissioner of Railways v Stewart, several plaintiffs sued the WA Commissioner of Railways for negligence after their damage sustained damage from flooding. The plaintiffs argued that the culverts under the railway embankment were insufficient to deal with a rainfall which had occurred, with the result that water broke the embankment and damaged their properties.
The Commissioner of Railways argued that the culverts were adequate to deal with any rainfall that could reasonably be expected and that the rainfall on the day in question was an act of God for which it could not be held liable.
The court found that the downpour was not of the magnitude or intensity that it could be said to have amounted to an act of God. It ruled in favour of the plaintiffs, saying that the culverts ought to have been capable of dealing with heavy rainfall and that the Commissioner had breached its duty to carry out the work adequately.
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