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Acts of God
Throughout the English-speaking legal world, natural disasters such as earthquakes and tsunamis are referred to as acts of God. Acts of God are circumstances that are outside of anyone’s control and that could not be foreseen or guarded against. Acts of God may provide a defence or an exception to liability, for example, in a situation that would otherwise amount to a breach of contract or a tort.
A contract may contain an act of God or ‘force majeure’ clause. This is a clause that stipulates what happens in the event the terms of the contract cannot be carried out because of an event that is beyond the control of the parties. An force majeure clause may state, for example, that neither party is responsible for failing to perform its obligations under the agreement where the failure results from events beyond its reasonable control. A list of the sorts of events that would trigger the operation of the clause, such as natural disaster or the outbreak of war, would usually be provided.
Sometimes a force majeure clause will require a party to give notice of the event to the other party and any steps they have taken to recommence the contract. It may allow a party to terminate the agreement in the event of an act of God.
A party generally cannot invoke a force majeure clause in relation to circumstances that already existed at the time the contract was entered into. As well as acts of God, force majeure clauses may cover war and strikes, embargoes and abnormal weather conditions.
An act of God can provide a defence to an action in tort, where the act or omission complained of was the result of a natural disaster or another circumstance that was unforeseeable and unable to be guarded against. Where an act of God is responsible for what occurred, a party cannot be found liable as the act was not done intentionally or negligently.
Historically, the concept of acts of God was used to explain phenomena that lacked a scientific explanation. As human knowledge of natural events expands, the concept has become less useful or relevant and courts have become less inclined to find that circumstances were unforeseeable and unable to be guarded against.
Nichols v Marsland
In the 1876 English case of Nichols v Marsland, the defendant was the owner of artificial ornamental lakes which had never previously caused any damage. On one day in 1872, the lakes overflowed after an unusual fall of rain, the dams gave way, carrying away the county bridges. The jury found the re was no negligence on the defendant’s part as the exceptionally heavy rainstorm amounted to an act of God, which the defendant could not have anticipated.
Commissioner of Railways v Stewart
In the 1936 case of Commissioner of Railways v Stewart, several plaintiffs sued the Western Australian Commissioner of Railways for damages in negligence after damage was caused to their properties by flooding. The plaintiffs argued that the culverts beneath the railway embankment were insufficient to deal with a rainfall which had occurred, meaning that water broke the embankment, damaging properties.
The Commissioner of Railways argued that the culverts were sufficient to deal with the rainfall that could be reasonably expected and that the rainfall on the day in question amounted to 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 classified as an act of God. It ruled in favour of the plaintiffs, finding that the culverts ought to have been capable of dealing with a deluge of water and that the Commissioner breached its duty in carrying out the work.
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