19th July 2012

‘Act of God’ Should Not Be a Summer Get-out Clause

To my fellow learned friends within the Scottish legal profession it is ‘Damnum fatale’ but most members of the general public know it as ‘act of God’.

Given some of the consequences of our sustained bout of – even for Scotland – wholly unseasonal weather, this is a term which must have exercised the minds of many members of the population lately, whether they be religious, irreligious, atheistic or simply agnostic.

And it begs the question that with the climatic conditions experienced during June and July normally associated with mid-winter, does it mean that any insurance claim for damage to a house or, say, a car is less likely to succeed because said damage occurred as a result of freak weather for the time of year?

It would be very odd if the insurance company refused to pay up on the basis that  the damage was caused by an act of God because that’s the very thing you’re insuring yourself against – i.e. floods and storms per se and not just in winter.  However some insurance policies, particularly related to motor vehicles, do have ‘act of God’ exclusions in which case if your car is not insured against this eventuality and is then swept away in a freak flood, you will almost certainly not get compensation. As with all forms of insurance the rule is simple – read the policy before you sign it and make sure the terms provide the level of cover you consider are appropriate to your needs.

Victims of the weather who do not have insurance – or their insurance policy turns out to be inadequate – could investigate whether someone else is to blame for their loss. For example, if your home has been damaged by a flood caused by the collapse of a sewer, it may be possible to reasonably claim that it was the responsibility of the local authority to maintain this piece of infrastructure, that properly maintained sewers do not collapse, and that such a collapse is evidence that the council failed in its duty to maintain the sewer. The burden would then be on the council to explain the event in some way consistent with absence of fault on its part. As a general rule the only defences would be that the event was caused either by the action of a third-party for whom they were not responsible, or by a damnum fatale.

Damnum fatale (which is, clearly, from the Latin) is essentially some event which could not have been anticipated by any reasonable human foresight. It is usually a complete defence to any claim for damages to property or the person and the argument almost always boils down to whether what happened really was unforeseeable. It is a complex area and the outcome is dependent on individual circumstances, in which case where there is doubt, taking legal advice may be the only practical option.

Richard Godden – Partner
Edinburgh Office
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