This article is written by Diganth Raj Sehgal, Student, School of Law, Christ University, Bangalore. 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.

Introduction

General defences in torts are a set of defences or ‘excuses’ that a person can use to escape his liability. He can persuade the court to conclude that he is not guilty in any case only if his actions qualify a specific set of conditions. When the plaintiff brings an action against the defendant for a specific tort, proving the existence of all the essentials of that tort, the defendant would be liable for the same. The defendant may, however, in such a case, avoid his liability by using any of the defences available against the tort that he has committed. Some defences are available against some particular torts while some of them are available against all 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 kid Bubbles went on a mountain climbing trip to the Himalayas. They happen to reach a situation where Bubbles, Mr Panda and Mrs Panda were hanging from a rope in the respective order. The rope started to break. Seeing this Mr Panda realised that the rope can take only the weight of two people and decided that the only way to save bubbles was to reduce the weight by cutting the rope below him. He suggested this to Mrs Panda and they both agreed that if they don’t cut the rope all three will die. Mr Panda then cut the rope and Mrs Panda fell into the valley and died. Did Mr Panda commit the offence of Murder?

The general rule is that a person shall not unduly interfere with the rights or property of another but the exception to this is that if a  person is in a position in which he is forced to interfere with another’s right in order to prevent harm to himself or to his property, such interference is allowed. The defence of necessity recognizes that there may be situations of such overwhelming urgency that a person must be allowed to respond by breaking the law.

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

The Black’s Law Dictionary defines the word ‘necessity’ as ‘Controlling force; irresistible compulsion; a power or impulse so great that it admits no choice of conduct.’

Necessity is a defence to both the criminal law and the civil law, that is, if an action was ‘necessary’ to prevent a greater harm, that can be used to avoid both criminal and civil liabilities.

The above example shows the defence of necessity in case of a crime as the offence of murder is involved. Here,  Mrs. Panda had a right to life which was interfered in by Mr. Panda. But, it was necessary for Mr. Panda to take such an action in order to save the life of his child. Here, the reasoning could also be the ‘greater good’ concept. If Mrs. Panda has not been removed from the rope, all three would have died. And therefore, when Mr. Panda is brought before the court, he can take the defence of necessity.

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 is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.”

The doctrine of Necessity under Torts

The doctrine of necessity under torts has the same definition and scope as the doctrine under crime. The only difference exists in its application, i.e. under torts, the doctrine is primarily invoked by the defendant in cases of defence against the intentional torts such as conversion, trespass to chattels and to land.

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

This is based on the Latin common law maxim of  ‘necessitas inducit privilegium quod jura privata’. This means that ‘Necessity induces a privilege because of a private right. A court will grant this privilege to a trespasser when the risk of harm to an individual or society is apparently and reasonably greater than the harm to the property.

This defence is different from the privilege of ‘self-defense’ in the sense that unlike people seeking self-defence, those who are harmed by individuals invoking the necessity privilege are usually free from any wrongdoing.

In the case of Cope v. Sharpe (No 2) [1912] 1 KB 496, The defendant entered the plaintiff’s land to prevent the spread of fire to the adjoining land and prevent the damage which could have been caused. The plaintiff, in this case, sued the defendant for trespass but since the defendant’s act was considered to be reasonably necessary to save the property and from real and imminent danger, the court held that the defendant was not liable for trespass as he has committed an act of necessity.

Liability on the person invoking the defence of necessity

Illustration:

Samosa entered the land of Kachori seeing that the son of Kachori, Pakoda had touched a live wire and was being electrocuted. For entering the land, Samosa has to break down wooden fencing. Samosa saved Pakoda but Kachori filed a case against Samosa for trespass.

Here, though samosa will not be liable for trespass as he may invoke the defence for necessity and he is not obliged to pay any form of punitive or nominal damages.

Invoking of the defence of necessity and its Proof

The necessity defence applies to emergency situations where a person was allowed to act in a wrongful way so as to prevent greater harm to the person or any other person, his or any other personal property, or the community at large. It is essential to show the presence of the following to prove the necessity defence:

1. The damage caused was less than the harm that would have occurred otherwise.
2. The person reasonably believed that his actions were necessary to prevent imminent harm.
3. There was no practical alternative available for avoiding the harm.
4. The person did not cause the threat of harm in the first place.

When a person asserts a necessity defence, it is up to the court’s discretion to decide if it can be applied in the given situation or not and if the person can be excused from all liability or not. It is very difficult to invoke this defence as it becomes very difficult to prove whether there was a necessity or not. Quite often such emergency situations arise when other persons are not present and so proving the need to break the law for a certain urgency is hard.

Due to this reason, the defence of necessity may be upheld only in exceptional cases where the need for the same is proved.

Types of Necessity

1. Private Necessity

Private necessity usually involves trespassing or interfering with another’s property done by a person to protect himself or his property. One usually has the right to continue trespassing or using the person’s property for as long as the emergency is still ongoing. The private defence is a partial defence which is available to the defendant which means the defendant who commits trespass and claims the defence of private necessity, must still pay for any harm caused to the plaintiff’s property 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 on the side of a public highway, she used Lovely’s farmland which was adjacent to the highway to pass where the highway was not accessible due to snow, doing no unnecessary damage to the field. Lovely sued Dimple for trespass but Dimple can argue that she has a right to way based on necessity, because the highway was impassable.

In the case of Vincent v. Lake Erie Transportation Co., the Defendant was at the dock of the plaintiff to unload cargo from the steamship owned by the defendant. Due to a violent storm developed, the defendant was unable to leave the dock safely so, instead, he tied the ship to the dock. A sudden wind threw the ship against the dock significantly damaging the dock. It was held that a private necessity may require one to take or damage another’s property, but compensation is required. The defendant deliberately kept the ship tied to the dock, if not, the ship could have been lost creating far greater damage.

2. Public Necessity

Public necessity means any action taken by public authorities/officials or private individuals to avert a public calamity which had a tendency to harm the public at large. This is applied when any trespass is done by a person to protect a greater community.

Public Necessity is an absolute defence which means that the persons who have trespassed are not required to pay any compensation to the owner of the property. Generally, public employees like firefighters, police, army personnel claim public necessity.

Example- The Army of Russia enters into a building owned by M/s Intel Enterprises in order to eject the rioters who were causing injuries and several other problems to the citizens. While ejecting those rioters, the army caused some damages to the building. The owner of M/s Intel enterprises sued the Russian Government for the damages made to the building and claiming compensation but the Russian Government has done so to protect the public at large, hence, not liable to pay anything.

In the case of Surocco v. Geary, San Francisco was hit by a major fire. The plaintiff was attempting to remove goods from his home while the fire raged nearby. The defendant (Mayor) authorized that the plaintiff’s home demolished to stop the progress of the fire and to prevent its spread to nearby buildings. The plaintiff sued the defendant claiming he could have recovered more of his possessions had his house not been blown up. The court held that the right of necessity falls under natural law and exists independent of society and government. Individual rights must give way to the higher law of impending necessity. Here, blowing up the Plaintiff’s house was necessary to stop the fire. Any delay in blowing up the house to allow him to remove more of his possessions would have made blowing up the house too late.

Landmark Judgments which applied the Doctrine of Necessity

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

In this case, the crew of a yacht were cast away in a storm on the high seas far from the coast and were compelled to put out into a lifeboat.

They ran out of food, and on the twentieth day, they had not eaten anything for at least eight days.

Two of the four men decided to kill the boy crew member, Parker, who was then lying at the bottom of the boat, extremely weakened by famine and drinking seawater and unable to resist.

The remaining three men fed upon the body for four days and on the fourth day they were rescued by a passing vessel.

According to them, there was no reasonable prospect of relief, rather than feeding upon the body of the boy. They would probably not have survived and the boy being in a much weaker condition was likely to have died before them.

Both Dudley and Stephen claimed that they killed and ate Parker. Under the extreme situation, they had no choice but to kill someone out of necessity.

When they were rescued, they were brought before the court and charged with murder. They tried to claim the defence that it was necessary for their survival to act in this manner. They were convicted and sentenced to death but this sentence was afterwards commuted by the Crown to six months’ imprisonment.

R. v. Bourne (1939) 1 KB 687

In this case, a young girl was raped which caused her to get pregnant. The defendant was a gynaecologist and he performed an abortion on her with the consent of her parents as he believed that a victim of rape could die if permitted to give birth.

The question arose if the defendant was guilty of unlawfully procuring a miscarriage. The court held that the defendant had acted in good faith and had exercised his clinical judgement. The possible consequence of the continuance of the pregnancy would have had a negative effect on the physical and mental health of the girl.

Court established that doctors do not have to wait until the patient is in peril of immediate death but rather it is the duty of doctors to perform the operation if, on reasonable grounds and with adequate knowledge of the consequences.

Thus, the doctor committed an illegal act in order to save the life of the girl and the court decided that he was not guilty and he had carried out the act in a situation where the life or health of the pregnant girl was reasonably thought to be in danger.

Conclusion

The doctrine of necessity states that if an act is done and it causes harm but it is done in good faith in order to prevent harm, the person who does such an act is not liable. This is so provided that the harm caused due to an act done in necessity should not be intentional in nature. Also, it should only be done in cases where the purpose is to prevent greater harm which might be caused if the minor harm is not caused by the defendant.

The best way to explain this is if there is a ship moving, the sailor sees 10 people in a boat and in another boat, there were 2 people. Should he divert the ship to kill 2 persons in order to save the people in the ship and those 10 people in the bigger boat? This creates a moral dilemma, but what the law states is very simple. If the sailor has to divert the ship and kill the 2 people, he could not be imposed with a liability. In other words, the sailor would be able to claim the defence of necessity.