LAW OF TORTS

 
 KIRIT P. MEHTA
SCHOOL OF LAW
 

LAW OF TORTS RESEARCH PAPER

 
NECCESSITY AS A DEFENCE IN TORT LAW 

SUBMITTED TO – MR. RAJNEESH DUBEY

SUBMITTED BY – PRINCE SINGAL

SAP ID – 81012100544

ROLL NO. – I043

1st YEAR / I SEMESTER / BA.LLB(HONS.)

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This research paper is written by  PRINCE SINGAL, Student, School of Law,
NMIMS,INDORE. The author in this article has discussed the general defence
of Necessity against Torts which is available with the defendant. The author
also analyses the evolution of the doctrine of Necessity through various
judgments and the distinction between private and public necessity.

NECCESSITY AS A DEFENCE IN TORT LAW

INTRODUCTION

In tort law, general defences are a collection of defences or "excuses" that a person might use
to avoid culpability. Only if his actions fit a set of standards can he persuade the court that he
is not guilty in any scenario. The defendant is liable when a plaintiff takes an action against
the defendant for a specific tort and shows the existence of all of the tort's basic elements. In
such a circumstance, the defendant may avoid culpability by asserting any of the tort's
authorised defences. Some defences apply only to certain types of torts, whereas others apply
to all types of torts.

Types of General Defences

Some of the General Defences which a defendant can use to remove his tortious liability,
some of them are as follows:

Volenti non fit injuria

1. Act of God
2. Inevitable Accident
3. Self-Defence
4. Statutory Authority
5. Plaintiff- the wrongdoer, and
6. Necessity

Necessity as a Defence
Illustration: Mr Panda, Mrs Panda, and their child Bubbles went mountain climbing in the
Himalayas. They happened to come across a situation in which Bubbles, Mr Panda, and Mrs
Panda were all hanging from a rope in the correct order. The rope began to fray. When Mr
Panda saw this, he realised that the rope could only support the weight of two people and
decided that the only way to save bubbles was to reduce the weight by cutting the rope
beneath him. He mentioned it to Mrs Panda, and they both agreed that if they don't cut the
rope, all three of them will perish. Mr Panda then severed the rope, causing Mrs Panda to fall
into the valley and die. Did Mr Panda commit the heinous crime of murder?

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The general rule is that a person shall not unduly interfere with another's rights or property;
however, if a person is in a position where he is forced to interfere with another's right in
order to prevent harm to himself or his property, such interference is permitted. The defence
of necessity acknowledges that there may be situations in which a person must be allowed to
respo

This concept is based on the Latin maxim 'Salus populi suprema lex esto,' which means that
the welfare of the people should be the supreme law, and any damage to a person's rights or
property is excusable if it prevents greater harm.

'Necessity,' according to Black's Law Dictionary, is a 'controlling force; irresistible

compulsion; a power or impulse so great that it admits no choice of conduct.'

Necessity is a defence under both criminal and civil law; that is, if an action was "necessary"
to prevent greater harm, it can be used to avoid both criminal and civil liability.nd by
breaking the law.

The accompanying scenario illustrates the defence of necessity in the case of a murderous
crime. Mr. Panda infringed on Mrs. Panda's right to life here. Mr. Panda, on the other hand,
had no choice but to act in this manner in order to save his child's life. The concept of the
"greater good" could also be applied here. If Mrs. Panda had not been dragged from the rope,
all three would have died. As a result, if Mr. Panda is brought before the court, he will be
able to use necessity as a defence.

According to Section 81 of the Indian Penal Code, necessity is defined as a "act likely to
inflict harm, but done without criminal intent, and to prevent further harm."

Necessity is  defined under Section 81 of the Indian Penal Code as “ Act likely to cause
harm, but done without criminal intent, and to prevent other harm.— Nothing constitutes a
crime just because it is done with the knowledge that it is likely to cause harm, as long as it is
done without any criminal intent to cause harm and in good faith to prevent or avert
additional injury to person or property."

The doctrine of Necessity under Tort

The tort doctrine of necessity has the same definition and scope as the criminal doctrine. The
only difference is that in torts, the doctrine is primarily invoked by the defendant in cases of
defence against intentional torts such as conversion, trespass to chattels, and trespass to land.

In common law, the defence of necessity grants the state or an individual the right to take or
use another's property, i.e. a person has the qualified right to intentionally trespass onto
another's land in order to prevent serious harm to oneself, one's own land, one's chattels, or
another's person, land, or chattels.

This is founded on the Latin common law maxim 'necessitas inducit privilegium quod jura
privata.' This means that "necessity induces a privilege as a result of a private right." A court

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will grant this privilege to a trespasser if the risk of harm to an individual or society is clearly
and reasonably greater than the risk of damage to property.
This defence differs from the privilege of'self-defense' in that, unlike those seeking self-
defense, those harmed by individuals exercising the necessity privilege are usually innocent
of any wrongdoing.

Cope v. Sharpe (No 2) [1912] 1 KB 496, The defendant entered the plaintiff's land to prevent
the spread of fire to adjoining land and the potential for damage. In this case, the plaintiff
sued the defendant for trespass, but because the defendant's act was deemed reasonably
necessary to save the property from real and imminent danger, the court ruled that the
defendant was not liable for trespass because he committed an act of necessity.

Liability on the person invoking the defence of necessity

Illustration:
Samosa entered Kachori's land after learning that Pakoda, the son of Kachori, had touched a
live wire and was being electrocuted. Samosa must dismantle wooden fencing in order to
enter the land. Samosa rescued Pakoda, but Kachori filed a trespassing complaint against
him.
Samosa will not be liable for trespass in this case because he can invoke the defence of
necessity, and he is not required to pay any form of punitive or nominal damages.

Invoking of the defence of necessity and its Proof

The necessity defence applies in emergency situations where a person was permitted to act
wrongfully in order to prevent greater harm to the person or another person, his or another
person's personal property, or the community at large. To establish the necessity defence, it is
necessary to demonstrate the presence of the following:

The damage done was less severe than the harm that would have resulted otherwise.

1. The individual had a reasonable belief that his actions were required to prevent imminent
harm.

2. There were no viable alternatives for avoiding the harm.

3. The individual did not initiate the threat of harm.

When a person asserts a necessity defence, it is up to the court's discretion to determine

whether or not it can be applied in the given situation and whether or not the person can be
excused from all liability. It is extremely difficult to invoke this defence because proving
whether or not there was a necessity becomes extremely difficult. Because such emergency
situations frequently occur when other people are not present, proving the need to break the
law for a specific urgency is difficult.

As a result, the defence of necessity may be upheld only in exceptional cases where the need
for it is demonstrated.

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Types of Necessity

1. Private Necessity

Trespassing or interfering with another's property to protect oneself or one's property is a

common private necessity. For as long as the emergency is ongoing, one usually has the right
to continue trespassing or utilising the person's property. The private defence is a partial
defence available to the defendant, meaning that if a defendant commits trespass and claims
the defence of private necessity, he must still pay for any damage to the plaintiff's property
caused by his trespass.

However, the defendant is not liable for nominal or punitive damages. The principle of
private necessity is applied when:

1. It is reasonably visible to be necessary to prevent serious harm to the person, or his

land or chattels
2. The entry is for the benefit of the person

Example- Dimple was walking along the side of a public highway, and she used Lovely's
farmland adjacent to the highway to pass where the highway was impassable due to snow,
causing no unnecessary damage to the field. Lovely sued Dimple for trespass, but Dimple can
argue that she has a right of way because the highway was impassable.

In the case of Vincent v. Lake Erie Transportation Co., the defendant was at the plaintiff's
dock to unload cargo from the defendant's steamship. Due to a violent storm, the defendant
was unable to safely leave the dock, so he tied the ship to the dock. A strong gust of wind
blew the ship into the dock, severely damaging it. It was decided that while a private
necessity may necessitate taking or damaging another's property, compensation is required.
The defendant purposefully kept the ship tied to the dock; otherwise, the ship would have
been lost, causing far greater damage.

2. Public Necessity

Public Necessity is an absolute defence, which means that the trespassers are not required to
pay any compensation to the property owner. In general, public employees such as
firefighters, police officers, and army personnel claim public necessity.

For example, the Russian Army enters a building owned by M/s Intel Enterprises in order to
evict rioters who were causing injuries and other problems for the citizens. The army caused
some damage to the building while evicting the rioters. The owner of M/s Intel enterprises
sued the Russian government for the building's damages and sought compensation, but the

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Russian government did so to protect the public at large and is thus not obligated to pay
anything.

San Francisco was devastated by a major fire in the case of Surocco v. Geary. While a fire
raged nearby, the plaintiff was attempting to remove goods from his home. The defendant
(Mayor) authorised the demolition of the plaintiff's home in order to halt the spread of the fire
and prevent it from spreading to nearby buildings. The plaintiff sued the defendant, claiming
that if his house had not been blown up, he could have recovered more of his belongings. The
court ruled that the right to subsistence is governed by natural law and exists independently
of society and government. Individual liberties must yield to the higher law of impending
necessity. In this case, blowing up the Plaintiff's house was required to put out the fire. Any
postponement in blowing up the house. Allowing him to remove more of his belongings
would have put the bombing of the house too late.

Landmark Judgments which applied the Doctrine of Necessity

Case Law

1.R Dudley and Stephens 14 Q.B.D. 273 (1884)

In this case, the crew of a yacht was swept away in a storm on the high seas far from the
coast and forced to abandon ship in a lifeboat. They ran out of food and hadn't eaten anything
for at least eight days by the twentieth day. Two of the four men decided to murder Parker,
the boy crew member who was lying at the bottom of the boat, weakened by famine and
drinking seawater and unable to resist. The remaining three men fed on the body for four
days before being rescued by a passing vessel on the fourth day.

They saw no alternative to feeding on the boy's body as a reasonable prospect of relief. They
would not have survived, and the boy, who was in much worse condition, would have died
before them. Dudley and Stephen both claimed to have killed and eaten Parker. They had no
choice but to kill someone due to the extreme circumstances.
When they were apprehended, they were taken to court and charged with murder. They
attempted to use the defence that acting in this manner was necessary for their survival. They
were convicted and sentenced to death, but the Crown later commuted the sentence to six
months in prison.

2. R. v. Bourne (1939) 1 KB 687

In this case, a young girl was raped, resulting in her pregnancy. The defendant was a
gynaecologist who performed an abortion on her with her parents' permission because he
believed that allowing a rape victim to give birth would result in death.

The question arose as to whether the defendant was guilty of illegally causing a miscarriage.
The court determined that the defendant acted in good faith and used clinical judgement. The
continuation of the pregnancy could have had a negative impact on the girl's physical and
mental health.

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The court determined that doctors do not have to wait until the patient is in imminent danger
of death, but rather it is their duty to perform the operation if reasonable grounds and
adequate knowledge of the consequences exist.

Thus, the doctor committed an illegal act in order to save the girl's life, and the court decided
that he was not guilty because he did so in a situation where the pregnant girl's life or health
was reasonably thought to be in danger.

CONCLUSION

According to the doctrine of necessity, if an act causes injury but is performed in good faith
in order to avoid harm, the person who performs the act is not accountable. This is true as
long as the harm created by an act performed out of necessity is not deliberate. It should also
only be used in circumstances where the goal is to prevent more serious injury from
occurring if the small harm is not caused by the defendant.

The best way to describe this is if a ship is travelling and a sailor sees 10 people in one boat
and 2 people in another boat. Should he redirect the ship in order to kill two people in order
to save the passengers on board and the ten people aboard the larger boat? This raises a moral
quandary, but the law is straightforward. The sailor could not be held liable if he had to
reroute the ship and murder the two victims. In other words, the sailor would be able to use
the necessity defence. Where the necessity for the same is demonstrated.

CITATIONS

- KJ and others, “Necessity as a Defence in Tort” (iPleadersOctober 9, 2019)

<https://blog.ipleaders.in/necessity-a-defence-in-tort/> accessed January 4, 2022 

- KJ and others, “Necessity as a Defence in Tort” (iPleadersOctober 9, 2019) <- KJ and

others, “Necessity as a Defence in Tort” (iPleadersOctober 9, 2019) accessed January
4, 2022 > accessed January 4, 2022