To escape criminal culpability, the firm must explain how the flyover came down on its own — without any forces of nature coming into play.
IVRCL Ltd, the firm that was building the Kolkata flyover that collapsed on March 31, killing 27 people, triggered outrage by describing the tragedy as “an act of God”. By using this expression in its first reaction to the media, the company appears to have tried to seek refuge under a common law principle usually applied to ward off culpability in a civil case, and could be preparing the ground for its arguments in court.
‘Act of God’ could be an arguable defence to mitigate civil liabilities, especially those arising out of contract — but in the criminal case filed against the company, it has limited worth. In the absence of an apparent ‘act of God’ such as an earthquake or fire leading to the collapse of the flyover, the onus would be on the firm to show it is not at fault.
The ‘act of God’ defence is based on the tort law principle that liability must be founded on a fault — and that a person cannot be penalised where the real fault is that of a ‘vis major’ — or ‘act of God’ — where all precautions were taken, and a casualty still occurred.
‘Force majeure’ — a superior force that can neither be anticipated nor controlled — is another defence in cases of accidents. Force majeure connotes a freak of nature of sufficient velocity and destructiveness to overcome all reasonable preparations and the occurrence of such events cannot be prevented by human care, skill or foresight.
Both ‘act of God’ (vis major) and force majeure are derived from a theory that the tragedy was the result of an inevitable accident that could not have been foreseen or prevented by exercise of due care and diligence of any human being involved in it. Both can be used as valid defences under the clause of ‘inevitable accident’, but they have different applications in law.
While an ‘act of God’ includes all causes of an inevitable accident caused by elementary forces of nature not connected with any agency of man, the scope of force majeure is much wider. Force majeure includes not only natural forces but also various other causes that can be connected to human agency — directly or indirectly, but on which the humans involved have no control; or the incident whose happening was inevitable, and which could not have been controlled.
Hence, factors like wars, law and order problems, breakdown of machinery or strikes, governmental intervention, or even adverse action by a third party, which are beyond the control of human agency would be covered as suitable defences under force majeure. Both these defences are used by parties of contract to get exonerated of charges and penalities they face on account of their failure to perform contractual obligations, as also in cases of tort and civil suits to escape payment of damages or clauses of specific performances.
However, the ‘act of God’ and force majeure defences are available subject to certain inherent standards. They do not come to the rescue of any person, and do not apply to anything which a party to the accident can avoid or could have avoided. Scrutiny of the defences, therefore, involves evaluation of evidence that the party undertook all precautions and reasonable preparations to avoid the consequences of foreseeable conditions. It is not sufficient to merely contend that the casualty resulted from an ‘act of God’ or force majeure.
Further, the application of a successful defence based on ‘act of God’ and force majeure necessarily focuses on human factors and a ‘contributory negligence’ can make the defence unacceptable. It can be lost by demonstrating that a party seeking the defence also contributed to the accident, or that notwithstanding acts of nature, the loss could have been avoided by exercise of reasonable care or adequate precautions.
Therefore, practical application of the doctrine of ‘act of God’ and force majeure is essentially based on proving due care, contingency planning and precautionary measures, lack of negligence, and reasonable conduct. The Supreme Court has also acknowledged ‘act of God’ and force majeure as valid defences, although with certain caveats.
In Inacia P Carvalho Vs Desk To Desk Courier and Cargo Limited, the Supreme Court ruled that ‘act of God’ and force majeure do not include all instances to cover up the deficiency in services and negligence. It said that parties to a contract are expected to show professionalism in performing the obligations of a contract, and these defences are not acceptable in instances of negligent unprofessional action.
Further, a body of judgments holds that contracts have to make sufficient stipulations regarding the liability of a party which seeks to wriggle out of obligations citing ‘act of God’ or force majeure. IVRCL can adopt ‘act of God’ as a defence for distancing itself from the civil liabilities relating to the construction of the flyover, where it will need to demonstrate a reasonable degree of caution and care coupled with foreseeability. But in the criminal case, if the company adopts the same argument, the onus will be on it to prove how the flyover came crashing down without any forces of nature causing the collapse. In criminal law jurisprudence, the liability to prove a case rests on the shoulders of the prosecution.
However, with more than two dozen people having lost their lives, several IVRCL officials have already been arrested under IPC Sections 302 (murder) 307 (attempt to murder), and 120B (criminal conspiracy). The prosecution in a case like this depends upon documentary evidence and expert opinion, which in turn is premised on standard parameters such as quality of materials used, design, engineering norms etc. A defence regarding an ‘act of God’ can be taken only at an appropriate stage — and it is very unlikely that a prosecution would fall before a trial is ordered when a man-made construction has come down without any evident ‘act of God’.