Inevitable Accident

An inevitable accident or “unavoidable accident” is that which could not be possibly prevented by the exercise of ordinary care, caution and skill. It does not apply to anything which either party might have avoided. Inevitable accident was defined by Sir Frederick Pollock as an accident

“not avoidable by any such precautions as a reasonable man, doing such an act then there, could be expected to take.”

It does not mean a catastrophe which could not have been avoided by any precaution whatever, but such as could not have been avoided by a reasonable man at the moment at which it occurred, and it is common knowledge that a reasonable man is not credited by the law with perfection of judgment. As observed by Greene M.R., an accident is“one out of the ordinary course of things, something so unusual as not to be looked for by a person of ordinary prudence.” All causes of inevitable accident may be divided into 2 classes

  • Those which are occasioned by the elementary forces of nature unconnected with the agency of man or other cause
  • Those which have their origin either in the whole or in part in the agency of man, whether in acts of commission or omission, nonfeasance, or in any other causes independent of the agency of natural forces. The term “Act of God” is applicable to the former class.

An accident is said to be ‘inevitable’ not merely when caused by Vis major or the act of God but also when all precautions reasonably to be required have been taken, and the accident has occurred notwithstanding. That there is no liability in such a case seems only one aspect of the proposition that liability must be based on fault. Act of God or Vis Major or Force Majeure may be defined as circumstances which no human foresight can provide against any 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 result from them. Vis Major includes those consequences which are occasioned by elementary force of nature unconnected with the agency of man. Common examples are falling of a tree, a flash of lightening, a tornado or a flood. The essential conditions of this defence are:

  • The event causing damage was the result of natural forces without any intervention from human agency.
  • The event was such that the possibility of such an event could not be recognized by using reasonable care and foresight[3].

The American Jurisprudence defines act of God as:

An event may be considered an act   of God when it is occasioned exclusively by the violence of nature. While courts have articulated varying definitions of an act of God, the crux of the definition typically is an act of nature that is the sole proximate cause of the event for which liability is sought to be disclaimed[4].

Act of God as a defence arises only where escape is caused through 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[5].

Origin and Historical Evolution of the Defences

In the pre nineteenth century cases, the defence of inevitable accident used to be essentially relevant in actions for trespass when the old rule was that even a faultless trespassery contact was actionable, unless the defendant could show that the accident was inevitable. It was for long thought that the burden of proof in trespass upon the person rested with the defendant and that trespass, therefore, offered scope to the defence of inevitable accident, but it has now been held that here too the burden is with the claimant In trespass as well as in negligence, therefore, inevitable accident has no place. In these cases inevitable accident is irrelevant because the burden is on the claimant to establish the defendant’s negligence, but it does not follow that that it is any more relevant if the claimant has no such burden. The emerging conception of inevitability can be seen most clearly in Whitelock v. Wherwell ,the bolting horse case from 1398. The complaint in Whitelock was unusual because the plaintiff, rather than just reciting that the defendant had hit him with force and arms, also alleged that the defendant had “controlled the horse so negligently and improvidently” that it knocked him down. The defendant conceded that the horse had knocked down the plaintiff, but pleaded that the plaintiff’s fall was “against the will” of the defendant. The defendant went on to explain that he had hired the horse without notice of its bad habits, that it ran away with him as soon as he mounted it, and that he “could in no way stop the horse” although he “used all his strength and power to control” it. It was a plea of inevitable accident in a case of latent defect (the horse is a “bolter”). The collision may have been inevitable, but it had become inevitable by virtue of the defendant’s negligence, and was thus not held to be an accident.

The first explicit statement that a defendant can escape liability in trespass if the accident was inevitable occurs in Weaver v. Ward decided in 1616. The category “inevitable accident” was understood, in its inception as distinguished from the defence of “accident,” or “mischance,” which was available in felony but not in trespass, and which was a true no-negligence defence. The defendant in Weaver inadvertently shot the plaintiff when his musket discharged while their company of soldiers was skirmishing with another band. The defendant pleaded that he “accidentally and by misfortune and against his will, in discharging his musket, injured and wounded the plaintiff; which wounding is the same trespass of which the plaintiff complains.” Substantively, this was a plea of accident. The plaintiff demurred, and the court held the defendant’s plea bad. In trespass, the plaintiff needed only to allege that the defendant had done harm with force and arms, rather than done harm negligently. In actions on the case, however, allegations of negligence seem always to have been necessary

In property damage cases involving heavy weather, where there was typically a presumption of fault against the moving vessel, and the vessel owner’s efforts to rebut liability take the inevitable accident form. The inevitable accident defence was typically invoked when a vessel, caught in the full force of a storm, has been driven against another vessel or vessels, or against a fixed structure. Property damage cases also involved destruction by fire.  In Tucker v. Smith (1359), the defendant said simply that his house “caught fire by mischance and was burned down so that the fire there from being blown by the wind to [plaintiff’s] house” burned it “by mischance.” It can be quite as impractical to stop an ordinary wind from spreading fire as a tempest. The plaintiff therefore elected to join issue on how the fire started rather than how it spread. His special traverse claimed that the defendants burned the house “of their own wrong and by their fault” and denied that it “was burned down by mischance.”

In Ellis v. Angwyn (1390), the defendant pleaded that unknown to him and “against his will, a fire suddenly arose by mischance” in his house, and was spread by “a great gust of wind” to the plaintiff’s houses. The plea says nothing about what the defendant did to prevent the fire from arising or spreading. The act of God was thus incorporated (though not by that name) in a plea of accident to show that the harm was inevitable.The last pre-nineteenth century case that directly deals with how inevitable accident should be pleaded is Gibbons v. Pepper[13]. The defendant pleaded that his horse became frightened and “ran away with him so that he could not stop the horse,” that the plaintiff ignored his warning “to take care,” and that the horse thus ran over the plaintiff “against the will of the defendant.” In substance, this was a plea of inevitable accident. Gibbons thus holds that inevitable accident should be raised by pleading the general issue when the substantive nature of the plea amounts to a complete denial of causal responsibility. The Gibbons court put the “runaway horse” on a par with the hypothetical case of A using B’s hand to strike C, and treated both as denials.

In Mitchell v. Allestry (1676), the plaintiff was run over by two untamed horses the defendants were breaking in a public square. The plaintiff initially brought an action claiming that the defendants “did negligently permit” the horses to run over her. But at the first trial “the evidence as to the negligence” went against the plaintiff, and she was non-suited. She then brought a second suit, in which, as counsel for the defendant said, her “own declaration excused” the defendants of that “negligence,” because it said “that on account of their ferocity they could not govern them, but that they did run upon her.” The first suit failed because the evidence-given that the plaintiff did not challenge the defendants’ antecedent decision to break horses in a public square-showed that the harm was both accidental and inevitable. The court (Hale, C.B.) pointed out, however, that the plaintiff could sue again on a different theory. This accordingly illustrates the way in which some decisions about precautions were governed only by accident, while others were also governed by inevitability. In the Nitro Glycerine[15] case, the defendants, a firm of carriers, received a wooden case to be carried to its destination and its contents were not communicated. It was found that the contents were leaking. The case was taken to the defendants’ office, which they had rented from the plaintiff and the defendants proceeded to open the case for examination but the nitro glycerine which was present had already exploded. All present were killed and the building was badly damaged. The defendants were held not liable “in the absence of reasonable ground of suspicion, the contents of the package offered them for carriage” and that, they were “without such knowledge in fact and without negligence.”

In the case of Holmes v. Matherthe defendant’s horses while being driven by his servant on a public highway ran away from a barking dog and became unmanageable that the servant could not stop them, but could, to some extent guide them. While trying to turn a corner safely, they knocked down and injured the plaintiff on the highway. It was held that the action was not maintainable since the servant had done his best under the circumstances. In the case of Fardon v. Harcourt-Rivington the defendant parked his saloon motor car in a street and left his dog inside. The dog has always been quiet and docile. As the plaintiff was walking past the car, the dog started jumping about in the car, smashed a glass panel, and a splinter entered into the plaintiff’s left eye which had to be removed. Sir Frederick Pollock said: “People must guard against reasonable probabilities but they are not bound to guard against fantastic possibilities” In the absence of negligence, the plaintiff could not recover damages. In the case of Brown v. Kendal the plaintiff’s and defendants dogs were fighting. The defendant was hitting the dogs to stop them from fighting while the plaintiff was standing at a distance watching them. Accidentally, the stick hit and hurt the plaintiff’s eye. In an action for damages it was held that the defendant would not be liable since the damage was the result of a pure accident and not the negligence of the defendant.

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