The defendant may escape liability in tort by establishing that the cause of the plaintiff, injury was an accident rather than any wilful or negligent act on his part. Accident means an unexpected injury and if the same could not have been foreseen and avoided in spite of reasonable care on the part of the defendant, it is inevitable accident. Therefore, if in the performance of a lawful act done with all reasonable care, damages ensue through some unavoidable reason; such damage affords no cause of action.
In Brown v. Kendall, (1859) 6 Cussing 292, the plaintiff’s and the defendant’s dogs were fighting. While the defendant was trying to separate them, he accidentally hit the plaintiff in his eye, who was standing nearby. The injury to the plaintiff was held to be the result of pure accident, for which no action could lie.
In Shridhar Tiwari v. U.P. State Road Transport Corporation, 1987 ACJ 636, while bus ‘A’ belonging to U.P.S.R.T. Corporation was being driven, suddenly a cyclist came in front of the bus, in order to save the cyclist, the driver applied brakes. The bus skidded on the road which was wet due to rain resulting in a collision between the rear portion of the bus and the front portion of the bus ‘B’ coming from opposite direction. Both the buses were driven at a moderate speed, and it was proved that there was no lack of reasonable care on the part of any of them. Thus, it was held to be the result of inevitable accident and consequently the defendant corporation was not liable for the same.
If A fires at a bird but the pellet from the gun strikes a tree and rebounds and injures B in a different direction, A can take the defence of inevitable accident [Stanley v Powell (1891) 11 Q.B. 86]. Similarly, if the driver is not able to control the horses, which are startled by a barking dog, and the plaintiff is thereby injured, the defendant will not be liable [Holmes v Mather (1857).
An important point to note in this regard is that the defence of inevitable accident is available when the event is unforeseeable and consequences unavoidable in-spite of reasonable precaution. Even if the event is heavy rain and flood but if the same can be avoided by reasonable precautions or its impact can be minimised, the defence of inevitable accident is not available in such a case. In S. Vedantacharya v. Highways Deptt. of South Arcot, 1987 ACJ 783, a bus passing over a culvert plunged into a stream, as the culvert gave way. The Highways Deptt. pleaded the defence of inevitable accident claiming that due to heavy rainfall during the past few days the water of a nearby lake entered the culvert with tremendous velocity which ultimately made it to give way. The High Court of Madras basing its decision on Engineer’s Report according to which the culvert was sound a day before the incident and normal traffic had passed through it, held it as inevitable accident.
The Supreme Court reversing the decision of the High Court held that the Highways Deptt. could not be absolved from liability by merely claiming that the accident was due to heavy rain and flood. It had to be further proved that necessary preventive measures had been taken anticipating such rain and flood and the accident occurred inspite of that.