LAW NEGOTATION

Law Negotation

Law Negotation

Issues to be negotiated

Referring to the liability mentioned in the case between Kingswear Historical Society's lawyer and the lawyer for Darmouth Town Council 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.

Summary of the issue

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 themVis 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].

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 ...