inevitable accident vis major

8/18/2019 Inevitable Accident Vis Major

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INEVITABLE

ACCIDENT



An inevitable accident or

"unavoidable accident"is that which could not bepossibly prevented by theexercise of ordinary care,caution and skill.



An inevitable accident is one which thedefendant could not have avoided by theuse of the kind and degree of carenecessary to the eigency under thecircu!stances"



Brown v. Kendall # $% &ass" '$

Cush"( )*) '+,-%(



.acts

A dog owned by Brown was /ghting with

a dog owned by 0endall " Brown stoodbehind 0endall while 0endall atte!1tedto se1arate the dogs with a stick andsustained 1ersonal in2uries when the

stick struck hi! in the eye" Brownbrought an action of tres1ass against0endall for assault and battery"



The trial court instructed the 2ury that if thedefendant was 1erfor!ing a necessary act or onewhich was his duty to 1erfor!# and was doing it in

a 1ro1er way# then he would not be liable1rovided he was using ordinary care" The trialcourt further instructed that if the act was notnecessary and 0endall did not have a duty tose1arate the dogs# he was liable for Brown3s

in2uries unless he was eercising etraordinarycare and the accident was inevitable" 4owever#Brown could not recover in any case if he hi!selfhad not been eercising ordinary care to avoid thein2ury"



The trial court further instructed that if Kendall hada duty to interfere, then Brown had the burden ofproof to show both negligence by Kendall, and that

Brown had used ordinary care to avoid the injury. fthe act was not necessary, Kendall had the burdento 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 o!ered by Kendall and the jury entereda verdict in favor of Brown. Kendall appealed



I556E5ho has the burden of proof to

show that the defendant wasnot using ordinary care#

$an a party be liable intrespass without a showing ofnegligence or fault on the partyof that party#



4olding and 7ule The plainti! has the burden ofproof to show that the

defendant did not use ordinarycare

%o. A party is not liable intrespass without a showing ofnegligence or fault on the partof that party.



Cause of action in tres1ass will lie whenone receives in2ury fro! the direct act ofanother" A 1arty will not be liablehowever if a 1urely accidental in2uryarises fro! his lawful acts"



5tandard of 8rdinary Care

The standard of ordinary care isdeter!ined on a case by case basis" It isthat kind and degree of care which1rudent and cautious !en would use#such as is re9uired by the eigency ofthe case# and such as is necessary toguard against 1robable danger"



In this case 0endall was doing a lawfulact and unintentionally in2ured Brown"Brown cannot recover unless he can1rove that 0endall 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 theaccident to a sudden failure of the vehicle3sbrakes" The Court found the Defendant liable asthere was no evidence that the vehicle was1ro1erly !aintained or ins1ected 1rior to the

accident" .urther# there was no evidence toe1lain why the brakes : which were working1ro1erly i!!ediately before and after theaccident : failed !o!entarily at the ti!e of theaccident" Last# the Court found that the

e!ergency hand brake was not in good workingorder which 1revented the Defendant fro!bringing the vehicle to a sto1 and !ay haveotherwise allowed hi! to avoid the collision"

t



u1re!e ourt o ana a7intoul v" ;<7ay and 7adiu!Industries Ltd"# =+*-$> 5"C"7" $?@

hile driving a car owned by his e&ployer,the respondent co&pany, '. stopped at anintersection for a tra(c)light. *is servicebrakes worked properly. The tra(c)lighthaving changed, he proceeded and saw thatthe line of tra(c ahead of hi& was at astandstill. The appellant+s car was at the rearof this line of tra(c.



At about - feet away fro& the appellant+scar, '. applied his service brakes and foundthat they did not work. hen his car was - to

/- feet fro& that of the appellant, he appliedhis hand brakes. This reduced his speed fro&0 &.p.h. to 1 &.p.h. but did not stop his carwhich struck the rear of the appellant+s car.

The trial judge accepted the defence ofinevitable accident and dis&issed the action.

This judg&ent was a(r&ed by the $ourt ofAppeal without written reasons.



The respondents have failed to prove two&atters essential to the establish&ent of thedefence of inevitable accident2 34 that the

alleged failure of the service brakes could nothave been prevented by the exercise ofreasonable care on their part and 304 that,assu&ing that such failure occurred without

negligence on their part, '. could not, by theexercise of reasonable care, have avoided thecollision which he clai&ed was the e!ect ofsuch failure.



'n the 5rst &atter, the respondents have &ade noatte&pt to prove that the sudden failure could nothave been prevented by reasonable care on their

part and particularly by ade6uate inspection. Theycalled no witness to explain why the service brakeswhich were working properly i&&ediately beforeand i&&ediately after the accident and passedsatisfactorily the test prescribed by the regulations,failed &o&entarily at the ti&e of the accident.7urther&ore, they have &ade no atte&pt to showthat the defect could not reasonably have beendiscovered



As to the second &atter, they have failed to showthat '. could not have avoided the accident by theexercise of reasonable care. f the hand brakes had

been in the state of e(ciency prescribed by theregulations, '. could have stopped his car beforethe collision occurred. At the least, the unexplained

failure to co&ply with the regulations was evidenceof a breach of the co&&on law duty to takereasonable care to have the car 5t for the road.

A889A: fro& the judg&ent of the $ourt of Appealfor 'ntario, a(r&ing the judg&ent at trial.



Gibbons v" Pepper The defendant 1leaded that his horse beca!e

frightened and ran away with hi! so that he couldnot sto1 the horse# that the 1lainti ignored hiswarning to take care# and that the horse thus ranover the 1lainti against the will of the defendant"In substance# this was a 1lea of inevitable accident"Gibbons thus holds that inevitable accident shouldbe raised by 1leading the general issue when thesubstantive nature of the 1lea a!ounts to aco!1lete denial of causal res1onsibility" TheGibbons court 1ut the runaway horse on a 1ar withthe hy1othetical case of A using Bs hand to strikeC# and treated both as denials.



Holmes v" Mather The defendants horses while being

driven by his servant on a 1ublic highwayran away fro! a barking dog and beca!e

un!anageable that the servant could notsto1 the!# but could# to so!e etentguide the!" hile trying to turn a cornersafely# they knocked down and in2ured

the 1lainti on the highway" It was heldthat the action was not !aintainablesince the servant had done his best underthe circu!stances"



ardon v" Har!ourt <

Rivin"ton



The defendant 1arked his saloon !otor car ina street and left his dog inside" The dog hasalways been 9uiet and docile" As the 1lainti

was walking 1ast the car# the dog started 2u!1ing about in the car# s!ashed a glass1anel# and a s1linter entered into the1laintis left eye which had to be re!oved"5ir .rederick ollock saidF #People must "uarda"ainst reasonable probabilities but they arenot bound to "uard a"ainst $antasti!

possibilities=+,># In the absence of negligence#the 1lainti could not recover da!ages"



Krishna Patra v" %rissa &tate

'le!tri!ity Board Krishna Patra v" %rissa &tate 'le!tri!ity

Board where it was held that InevitableAccident is not a valid defence in a caseof accidental death due to electrocution"5ince trans!ission of electricity was adangerous activity# the 1rinci1le of strictliability was a11lied in this case"



The Court further observedF

""""""e are of the view that an enter1risewhich is engaged in a haGardous or inherently

dangerous industry which 1oses a 1otentialthreat to the health and safety of the 1ersonsworking in the factory and residing in thesurrounding areas owes an absolute and non<delegable duty to the co!!unity to ensurethat no har! results to anyone on account ofhaGardous or inherently dangerous nature ofthe activity which it has undertaken"""""" And""""""



e would therefore hold that where anenter1rise is engaged in a haGardous orinherently dangerous activity and har! results

to anyone on account of an accident in theo1eration of such haGardous or inherentlydangerous activity resulting# for ea!1le# inesca1e of toic gas the enter1rise is strictlyand absolutely liable to co!1ensate all those

who are aected by the accident and suchliability is not sub2ect to any of the ece1tionswhich o1erate vis<a<vis the tortious 1rinci1lesof strict liability under the rule



5tanley vs" owell

In this case# the defendant and 1laintiwere 1art of a shooting 1arty that wenthunting# the defendant shot at a1heasant but his bullet glanced o anoak tree and hit the 1lainti" The courtruled that the act was an inevitableaccident and the defendant had taken all

the care that is e1ected of a reasonable1rudent !an"



5hridhar tiwari vs" 6 5tate 7oad Trans1ort Cor1

In this case# a bus driving down the roadsuddenly a11lied his brakes to sto1 fro!hitting a cyclist who suddenly swerved

into the road" As a result of the rains#the road was wet and sli11ery and therear 1ortion of the bus hit the front1ortion of another bus co!ing fro! the

o11osite direction"



The court ruled that since the busseswere driving at !oderate s1eeds andwere driving with 1rudence e1ected of

a reasonable !an" The defendantcor1oration was not held liable"



The Nitro glycerine case

In this case the defendants were acarrier co!1any" They were delegatedwith carrying a bo" hen the contents

of the bo began leaking they took itback to their oHce to ins1ect it" 8no1ening the bo the nitro glycerinee1loded and da!aged the building" The

building belonged to the 1lainti"



The court ruled that the defendantswere not liable as there was no way theycould have foreseen the contents of the

bo"



(isma)or



(is ma)or or the act ofod but also when allprecautions reasonably tobe re6uired have been

taken, and the accidenthas occurrednotwithstanding.



(is Ma)or includes those conse9uenceswhich are occasioned by ele!entaryforce of nature unconnected with the

agency of !an" Co!!on ea!1les arefalling of a tree# a Jash of lightening# atornado or a Jood"



Act of od as a defence arises onlywhere esca1e is caused through naturalcauses without hu!an intervention# in

circu!stances which no hu!an foresightcan 1rovide against and of which hu!an1rudence is not bound to recogniGe the1ossibility



$onstituents of this

defence2 • D u e t o f o r c e s o f n a t u r e o r

u n n a t u r a l c i r c u ! s t a n c e s

• K o u h a d n o c o n t r o l o v e r i t a n d i t h a 1 1 e n e d s u d d e n l y "

• K o u h a d n o k n o w l e d g e o r c o u l d n o t d o a n y t h i n g t o ! i t i g a t e t h e d a ! a g e "



The essential conditions of this defence areF

The event causing da!age was theresult of natural forces without anyintervention fro! hu!an agency"

The event was such that the 1ossibilityof such an event could not be recogniGedby using reasonable care and foresight



Blyth v" Birmin"ham *ater

*or+s ,oThe defendants had constructed water

1i1es which were reasonably strongenough to withstand severe frost" There

was an etraordinarily severe frost thatyear causing the 1i1es to burst resultingin severe da!age to the 1laintis1ro1erty"



It was held that though frost is a natural1heno!enon# the occurrence of anunforeseen severe frost can be

attributed to an act of od# hencerelieving the defendants of any liability"



Ramalin"a adar v" arayana

Reddiar In the Indian case of the1lainti had

booked goods with the defendant fortrans1ortation" The goods were looted

by a !ob# the 1revention of which wasbeyond control of defendant



It was held that every event beyondcontrol of the defendant cannot be saidact of od" It was held that the

destructive acts of an unruly !ob cannotbe considered an Act of od"



Nichols vs" &arsland

In this case the defendant created aseries of arti/cial lakes and builte!bank!ents to contain the!" 8ne day

due to etre!ely heavy rainfall# theheaviest in hu!an !e!ory# thee!bank!ents broke and the waterwashed away four bridges owned by the

1lainti" The court held that thedefendant was not liable as there was anact of god that contributed to theda!age"



A c t o f ; o d

% e g l i g e n c e



Act of od# in law# is an accident causedby the o1eration of etraordinary naturalforce" The eect of ordinary natural

causes 'e"g"# that rain will leak through adefective roof( !ay be foreseen andavoided by the eercise of hu!an carefailure to take the necessary 1recautions

constitutes negligence"



/ Ma+in Ltd "v London and

orth 'astern Railway ,o.The defendants were owners of a canal

which crossed a valley at the to1 of a highe!bank!ent" As the result of a violent

stor! the e!bank!ent colla1sed and agreat 9uantity of water esca1ed fro! thecanal into the strea! below and wascarried down to the 1laintis !ill where it

was de1osited together with a largenu!ber of stones" The 1laintis in clai!ingda!ages said that the act i!1osedabsolute liability irres1ective of negligence"



Liability for da!age was i!1osed on thedefendants even if such da!age wascaused by an act of od"



f the act of ;od is so overwhel&ingthat its own force produces the

injury independent of thedefendant<s negligence, then thedefendant will not be liable. f theda&ages su!ered are incurredsolely due to natural causes withoutany known fault, there is no liabilitybecause of the act of ;od.



There are two ways of viewing

this situation+" The act of od either su1ersedes the

defendants negligence

)" The defendants negligent act is not acause in fact of the in2ury



An act of od# however# is soetraordinary and devoid of hu!anagency that reasonable care would not

avoid the conse9uences hence# thein2ured 1arty has no right to da!ages"Accidents caused by tornadoes# 1erils ofthe sea# etraordinary Joods# and severe

ice stor!s are usually considered acts ofod# but /res are not so consideredunless they are caused by lightning"



The relationshi1 between these two defencesis a slightly a!biguous one" oing by logic andde/nition# these two defences are very si!ilar

in nature" In fact# by de/nition# (isMa)or0or!e Ma)eure is considered a ty1e ofinevitable accident" 4owever# a careful studyof their evolutionary 1rocess throws resultssubscribing to the contrary" These two

defences are two distinct for!s of esca1ingliability in tort" They are# in 1ractice referredto as two se1arate defences instead of onebeing a subset of the other"



4owever# in the absence of negligence# (isMa)or a11ears to be a !ore valid clai!"4aving resulted fro! a severe and drastic

natural catastro1he# (is Ma)or easily has awider do!ain" .ro! a 1hiloso1hical 1ointof view# this is a 1rinci1le which !akes odthe defendant hence !aking the accident

truly beyond hu!an control" Au contrarie#Liability !ight be i!1osed on a 1arty notnegligent on the grounds of the riskinvolved in the activity they were doing"

inevitable accident vis major

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