Act of God has been a major defence in tort law for more than three and a half centuries now, used to protect defendants who would normally be held liable under "Pacta Sunt Servanda" (agreements must be followed) if not for circumstances beyond their control and thus has been one of the cornerstones general defences in tort law.

According to Salmond an act of God includes those acts which a man cannot avoid by taking reasonable care. Such accidents are the results of the natural forces and are incoherent with the agency of man.

To put in simple words, Act of God includes those cases which could have not been foreseen particularly accidents that occur naturally without human intervention. These acts could not be anticipated beforehand, and they must in no way be a product of human actions. According to Lord Mansfield, an act of God is defined as "it is something in opposition to the act of man".

The 4th edition of Black's law dictionary also defines it as "An act occasioned exclusively by violence of nature without the interference of any human agency. It means a natural necessity proceeding from physical causes alone without the intervention of man." Even though the defence has primarily been unchanged for the past 3 centuries, the way it's being used might have , as human understanding of natural forces and the ways to prevent them have advanced over the past few centuries, and this is an analysis of such.

Origin of Act of God and its Meaning

The phrase "Act of god" itself was first not used in court rooms but rather in theological texts to describe what people perceived as the literal wrath of God. The term "Act of God" has its roots in 13th century religious scriptures defining forces beyond their understanding.

It could be considered as a kind of inevitable accident in which the damages arise from the involvement of natural forces.

Most commonly it needs to have these two characteristics to be successful:

1. There must be working of natural forces
2. The occurrence must be extraordinary and not one which could be anticipated and be reasonably guarded against.

The term was first used in the legal field by Lord Ellenborough in 1803 as "By Common Law, Carriers are insurers against every loss of property entrusted to their care, except losses arising from the Act of God, or the King's enemies".

The term was first used in the law books in 1581 by Sir Edward Coke in Shelley's case, when it was used to describe a man's death. In this case an Act of God is defined as something "which no industry could avoid or policy prevent" Though the phrase was made use of by other judges in this time span but it wasn't defined by any of them. Another important definition which gave the defence a much narrower but well-defined scope was given by Lord Mansfield in which he defined it as "An act of god is something in opposition to the act of man".

In UK – Scotland one of the first instances of the usage of act of God is in Tennant v Earl of Glasgow where Lord Chancellor Westbury has described the case as "what is denominated in the law of Scotland damnum fatale- occurrences and circumstances which no human foresight can provide against, and of which human prudence is not bound to recognize the possibility; and which, when they do occur, therefore, are calamities that do not involve the obligation of paying for the consequences that may result from them"

Later in the mid 19th century the phrase has picked up popularity as legal and insurance circles have started using it to discuss acts that cannot be anyone's responsibility and later it was defined in conjunction with the term Force-Majeure in Peter Simmond's "Dictionary of Trade Products" as a The French company operations phrase for inevitable incidents in the transportation of products caused by greater force is "act of God."

Studying the Evolution of Act of God through Case Laws

• Rylands v. Fletcher:
  • Ryland constructed a reservoir on his property to provide water to his mill.
  • The reservoir, built over mine shafts, burst and flooded Fletcher's coal mines.
  • The judge noted that "act of God" could have been a defense but ruled it redundant as no extraordinary or unforeseeable causes were present.
  • Conclusion: "Act of God" is considered an answer to strict liability from its inception.
     
• Nichols v. Marshland:
  • The defendant created artificial ornamental lakes by diverting a natural stream.
  • Unpredictably high rainfall caused flooding, resulting in damages to the plaintiff's property.
  • The jury found the defendant not liable, citing no negligence in construction or maintenance.
  • Conclusion: The severity of natural phenomena must be exceptional to meet the "act of God" threshold.
     
• Blyth v. Birmingham Water Works:
  • The defendant was responsible for maintaining the city's water infrastructure.
  • A harsh winter caused a fire plug to malfunction, flooding the plaintiff's house.
  • The court found no negligence, as the damage arose from a freak natural occurrence.
  • Conclusion: "Act of God" can be a successful defense against negligence in uncontrollable events.
     
• R.R.N Ramalinga Nadar v. Narayan Reddiar:
  • The defendant's lorry transporting goods was waylaid by an unruly mob during food agitation.
  • The court noted that "act of God" could absolve a common carrier of liability but only if a natural phenomenon is involved.
  • Conclusion: The absence of natural phenomena disqualifies the event as an "act of God."
     
• Kallulal v. Hemchand:
  • The southern wall of the defendant's house collapsed due to heavy rainfall, killing the plaintiff's children.
  • The court found the defendant liable due to the wall's dilapidated condition.
  • Conclusion: Predictable natural events, like seasonal rainfall, do not qualify as "act of God."
     
• Shriram v. Mitaben:
  • An earthquake of 7.9 magnitude caused a school building to collapse, killing 32 students.
  • The plaintiffs were the parents and relatives of the deceased students.
  • Conclusion: The applicability of "act of God" in such cases may depend on construction standards and foreseeability of events.

The court has found the defendant liable and negligent owing to certain facts of the cases such as the building having 4 stories and 25 rooms was constructed within a period of 2 and a half months and also no building use permission was obtained by the defendant nor were permits to run a laboratory or a school. The court has also found the construction material used to be of poor quality and also did not conform to the national building code and Indian standard code.

Though the defence of act of God was used by the defendant and they had good arguments for the usage of the same, the court's ruling, finding the defendant negligent and liable underlines the limitations of usage of act of God as a general defence. Even though the earthquake is directly responsible for the loss of 13805-20023 lives, destruction of 340,000 buildings and was primarily described as an act of God and in all good sense should make a perfect defence for the defendants but wasn't able to be used as such because the court has held the defendant to be grossly negligent for the poor maintenance and flawed construction of the building.

Conclusion
Though at first glance it looks like the defence of act of God hasn't changed much over the years, on further inspection of the various case laws and definitions over the years we can gain some insight into how the guidelines for usage of the defence have been narrowed down and sophisticated over the years, though the primary purpose has remained unchanged. In the famous Shelley's case of 1581 it was simply described in binary terms as something that couldn't possibly be prevented, later In Tennant v. Earl of Glasgow it was improved upon by being defined as something that could neither be prevented nor be something that could possibly be expected to occur given the circumstances at hand.

While In Rylands v. Fletcher the judge has observed that act of God could be an answer to strict liability for which the defendant usually does not have a lot of defences against by its very nature, the judge has also reiterated the need for the presence of extraordinary circumstances for this defence to be applicable.Later in Nichols v. Marshland the requirements for act of God to be applicable have been further defined when the jury has investigated into possible negligence by the defendant even though an extreme natural phenomenon is applicable. The importance of human negligence or rather the absence of such when perusing the defence of act of God was highlighted in this judgement.

Further, in Blyth v. Birmingham the court held the defendant not liable owing to the fact that negligence was not found in the defendant's actions, the court judgement thus once again underlines the importance of absence of negligence in successful use of act of God. Similar judgements about negligence were given by Indian courts in Kallulal v. Hemchand and Shriram v. Mitaben cases in which it was held that act of God cannot be used to excuse negligence. Overall, we can conclude that the defence of act of God has undergone significant changed over the years to transform it from something that's barely defined as a part of force majeure to being a sophisticated well-defined part of tort law.

Way forward:
Though act of God has historically been useful in defending people from unreasonable expectations of liability, with the advent of technology and science, humans can foresee natural disasters and are at times even the cause of such. The question of liability arises in these events, so in future the court should further define the limitations of act of God and answer the question of liability in human caused disasters, one such instance of this is China being sued over covid-19 but this has by far and large been a political maneuver rather than being taken as a critical question of law like it is.

Another such question of law that is in dire need of being answered is the question of liability in case of natural disasters partly caused by human activities Should a logging company be responsible for landslides that are caused as a byproduct of excessive deforestation in the area? Or if single corporations producing large amount of carbon emissions be responsible for the results of global warming caused by their actions? These are some pertinent questions of law that can be answered if only the dilemma of liability is to be solved.

References:

1. https://lexpeeps.in/act-of-god-vis-major-as-a-defence-under-tort-law
2. https://heimatundrecht.de/sites/default/files/dokumente/Black%27sLaw4th.pdf
3. https://www.lawctopus.com/academike/understanding-differences-act-god-force-majeure/
4. https://heinonline.org/HOL/P?h=hein.journals/sclr4&i=431
5. Hugh Tennent v. The Earl of Glasgow [1864] (UKHL)
6. Rylands v. Fletcher [1868] UKHL 1, L.R.
7. Nichols v. Marshland [1876] 2 Ex D 1
8. Blyth v. Birmingham Waterworks Company (1856) 11 Ex Ch 781
9. R.R.N Ramalinga Nadar v. Narayana Reddiar, [1971] (KER)
10. Kallulal and Anr. v. Hemchand [1958] (MP)
11. Shriram v. Mitaben [2010] (A.L.L H.C)