In a unique decision, the Privy Council has analysed the concept of ‘force majeure’ in the context of a dramatic accident in which a crane collapsed and severely damaged neighbouring buildings during a tropical cyclone on the Caribbean island of Mauritius.
It had been impossible to dismantle the crane in time before Cyclone Hollanda developed with greater than usual speed and hit the island with winds gusting in excess of 200 mph in February 1994. The crane had come adrift from a tower block and toppled onto two adjoining buildings.
In applying the island’s civil code, the courts of Mauritius found that the crane had been correctly erected and maintained and that there had been no fault on the part of the company that had installed and operated it. However, the company was found liable on the basis that it had control over the crane, benefitting from its possession, and thus had to bear the risk of any damage that it might cause.
The company’s plea that the cyclone amounted to an event of irresistible ‘force majeure’ which it could not reasonably have been expected to guard against was rejected on the basis that cyclones are relatively common in Mauritius and that neither the occurrence, not the intensity, of the storm had been unforeseeable.
The Privy Council, comprising five Supreme Court justices, acknowledged that ‘freak accidents’ can occur against which even the most responsible people cannot guard. The duty on the company was to take reasonable and practicable steps to prevent such occurrences, ‘not to make freak accidents absolutely impossible’. It was not, by itself, sufficient to say that cyclones are foreseeable in Mauritius.
However, in dismissing the company’s appeal, the Court found on the evidence that the company’s attitude that ‘it must be alright to operate the crane during a cyclone’ was based neither on inquiry, nor on experience. The company’s duty had extended to checking that, barring freak accidents, the crane was capable of surviving the known risk of winds exceeding 200 mph.