A legal representative for Harlequin wrote that the flash flood at Buccament Bay Resort and surrounding village was an act of God.
Act of God is a legal term for events outside human control, such as sudden flood or other natural disasters, for which no one can be held responsible.
In the law of torts, an act of God may be asserted as a type of intervening cause, the lack of which would have avoided the cause or diminished the result of liability (e.g., but for the earthquake, the old, poorly constructed building would be standing).
However, foreseeable results of unforeseeable causes may still raise liability. For example, the course of a river is diverted or altered, resulting in the unexpected flooding of areas that never flooded before. Liability may be found if they did not use reasonable care to protect against floods -- regardless of their origins. Similarly, strict liability could defeat a defence for an act of God where the defendant has created the conditions under which any accident would result in harm.
A natural disaster is a major adverse event resulting from natural processes of the Earth; examples include floods, volcanic eruptions, earthquakes, tsunamis, and other geologic processes. A natural disaster can cause loss of life or property damage, and typically leaves some economic damage in its wake, the severity of which depends on the affected population's resilience, or ability to recover.
Known areas prone to natural disaster, or that could be assumed to cause such an event as a natural disaster, for instance if you build in an area prone to flooding, or is known flood plain, or is close to an active volcano, or is subject to reoccurring sea surge. Then to build in such an area must carry a liability to the public and general population.
There is another term that the legal fraternity sometimes likes to use: 'act of nature'.
The term act of nature can refer to a 'natural disaster', generally a legal term used in certain contracts, synonymous with the legal term an act of God.
When does an act of nature causing a natural disaster become avoidable and become a legal liability to a property owner? When it is a known recurring natural event; when it is avoidable, for instance, by not building in a flood plain or an area that is known to flood, or has flooded before, or is known to be subject to sea surge.
What I would very much like to know is if Harlequin was aware of past flooding at Buccament. If Buccament is in a flood plain, were they aware that Buccament resort is built in that flood plain? Did they carry out appropriate searches to determine the dangers of flooding, sea surge and such like? Did previous partner/s advise before the project started to carry out certain defences? If they had such advice did they carry out appropriate defences as advised by previous partner/s in the project?
Did the government warn Harlequin of the possibility of flooding; was warning, reference or mention made to flooding or sea surge in the given planning consent/s?
Have previous articles appeared in publications warning of flooding and sea surge?
This document is not to lay blame on any one party or to lay blame on any individual, company or government department, it is a conglomeration of my own views and opinions and a series of questions and possibilities. Only a legal review of the situation or enquiry or court case brought by injured parties can determine liability. From reading this article the public should not assume or apportion liability blame to any party, leave that to the law if so applicable.
Self Appointed Keeper of the Whistle, and blowing hard