“Justification In Torts-Necessity

NISHITA GUPTA
Batch-2019-2024, Division –A, PRN-19010224152

Of Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), PUNE

In August, 2018

Under the guidance of

Mr. Ankur Sharma
Assistant Professor of Law & Head-Legal Aid Centre”

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CERTIFICATE
The project entitled “ Justification In TortsNecessity”
submitted to the Symbiosis Law School, NOIDA for Law of Torts, MV
Accident and Consumer Protection Laws I as part of Internal
assessment is based on my original work carried out under the guidance
of Mr.Ankur Sharma from 4 th July,2018 to 6 th August,2018. The
research work has not been submitted elsewhere for award of any
degree.
The material borrowed from other sources and incorporated in the
research has been duly acknowledged.
I understand that I myself could be held responsible and accountable for
plagiarism, if any, detected later on.

Signature of the candidate

Date -6 th August, 2018

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ACKNOWLEDGEMENT

I would like to express my sincere gratitude to Symbiosis Law School,

NOIDA and my project guide “Mr.Ankur Sharma” for giving us the
opportunity to work on this topic. It was simply impossible for me to work
on this project and achieve the results without her guidance, active
support and encouragement.

I would also like to acknowledge the support I received from my friends

and family members.

NISHITA GUPTA
PRN-19010224152
DATE-6 th August, 2018

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Serial no. Names Page No.

1 INTRODUCTION
4-7

2
ARTICLE REVIEW 7-11

3
CASE 11-13

4
CONCLUSION 13-14

5
REFERENCES 14

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JUSTIFICATION IN TORTS – NECESSITY

INTRODUCTION

This concept is based on the Latin maxim of ‘Salus populi suprema lex
esto’1 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 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.

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 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.

1
Merriam Webster’s Dictionary of Law

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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’.2 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.

Necessity can be two types:

Private necessity

“It arises when defendant damages another’s property to protect his own.

It focuses on self-interest rather than community at large. Furthermore,

As long as the emergency continues which caused the defendant to

Commit trespass on the plaintiff’s land, the defendant is entitled to

remain

On the plaintiff’s land and cannot be ejected as long as the emergency

Situation continues. Vincent v. Lake Erie Transportation Co is an example

Of private necessity.3”

Public Necessity

“Public necessity is taken by public authorities or private individuals to

Avoid a public calamity .In tort law, a defense that can be used against

Charges of trespass where a defendant interferes with a plaintiff’s

2
Merriam Webster’s Dictionary of Law
3
Vincent v Lake Eeie Transportation Co 109 Minn.456;124 N.W.221 (1910)

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Property in an emergency situation to protect the community or society

As a whole from a greater harm that would have occurred if the defendant

Had not committed trespass.

For example –to cause destruction of private property to stop the spread

Of fire .The first case of public necessity which was filled is Surocco v

Geary4”

Importance of Necessity

“Necessity brings flexibility into laws that would have been lead to unjust

Results (that is, punishment of desirable conduct) if applied mechanically.

The defence of necessity applies to situation where there is imminent

Danger. Like in a case, a person enters into another property to stop fire

And commit an offence of trespass. Necessity provides relief in situation

Like this.”

Limitation of Necessity

Under law of tort necessity is a plausible defence, which enables a person

To escape liability on the ground that the act complained of are necessary

To prevent greater harm.

ARTICLE REVIEW
NECESSITY by Alan Brudner

Oxford Journals5

4
Surroco v Geary 3 Cal. 69 ( Cal. 1853)
5
Oxford Journal Of Legal Studies , vol. 7, No. 3 ( winter, 1987), pp. 339 -368

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“The account of necessity presented in this article explains the clear cases
of justified law-breaking. It explains, for example, why it is not unlawful
to jettison cargo for the safety of passengers, to break out of a burning
prison, or illegally to put into port in order to avoid danger of death. It
also explains why it is not inherently unlawful to take food to avoid
starvation or to take shelter on private property to avoid death by
exposure. However, the agency theory of necessity would also justify
rights-infringements in more controversial cases where the conflicting
interests are closer in value as measured by their worth to agency. Thus,
taking blood from an unwilling donor would be justified if the battery were
objectively necessary to the saving of life and if it imposed no real risk to
the capacity for action of the victim. Killing a foetus would be justified
when necessary to save the life of the mother, because the basis of rights
in personality privileges actual over potential personality. On the other
hand, necessity as justification cannot avail anyone who imposes grave
risks on the life or health of persons regardless of the magnitude of the
net saving of lives. The justification afforded by necessity is based on a
hierarchy of qualitative values whose order is governed by agency, not on
a balancing of quantitative harms in pursuit of an indeterminate welfare.
There is, however, one famous American case for which the foregoing
analysis cannot account. In Vincent v Lake Erie Trans Co, a ship's captain
duty to tolerate the invasion. Commentators on the case have typically
viewed as unproblematic the court's assumption that the defendant's
action was justified, having sought instead to explain the court's finding of
liability. From our point of view, the liability rule presents no difficulty
once one understands the right of necessity as affirming rather than as
extinguishing property. What is perplexing, however, is that the
defendant was held justified in appropriating the plaintiff's property
simply in order to preserve his own more valuable property. Professor
Ernest Weinrib has argued that private necessity cases as well as cases
imposing a duty of an easy rescue can be explained in terms of a
suspension of contract values in situations where bargaining would likely

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prove grossly exploitative. Applied to a case like Vincent v Lake Etie, this
analysis would suggest that the ship owner can unilaterally appropriate
the dock provided he pay for its damage because any refusal by the dock
owner would amount in the circumstances to a coercive exploitation of
monopoly power inconsistent with the equality of moral agents. Now a
theory of unconscionable contracts is indeed an essential adjunct of the
foregoing account of necessity as justification, because such a theory is
kept his vessel moored to a dock after its cargo had been offloaded rather
than risk losing the ship in a storm. The ship repeatedly struck against
the dock, causing damage assessed at $500. The Minnesota Supreme
Court held the ship owner liable for the damage even though it conceded
that the plaintiff always a legal alternative to the defendant's dilemma.
Where contract is feasible, its legal possibility would remove the
defendant's justification for taking and entitle the victim to resist. Where
it is not feasible, its legal possibility would be alone sufficient to entitle
the victim to damages reflecting the expropriation of his power to
bargain. As Weinrib notes, however, it is difficult to formulate a principle
that would the legitimate contract in situations of necessity without
sweeping along with it the everyday exploitation of market advantage.
The crane cases, in which property-owners hold construction companies
up to ransom for permission to trespass on their airspace, have long been
deemed by the courts to illustrate a legitimate form of market coercion.
How are they to be distinguished from Vincent v Lake Erie? Let us begin
with the easier task of distinguishing the crane cases from one in which a
man on the point of starvation must either steal bread, exchange his
labour for bread, or die. It is possible to explain why contract is
acceptable in the former situation, but not in the latter, or why coercion is
compatible with freedom in the one but not in the other. The difference
has to do with the nature of a market. The latter would seem to imply a
liberation of human beings from natural necessities (which are satiable in
isolation) and a relation to each other through wants originating not in
nature but in the will. As an interrelation individuals through wants,

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moreover, the market is a system of external dependence and hence also
the possibility of mutual coercion. Nevertheless, this coercion is consistent
with freedom, because (or when) it is only the want or free will of one
individual that confers on another the power to coerce. When this is the
case, the person in thrall need only renounce his preference in order to
set himself free. Since in the crane cases the parties are related through
wants, their relations are essentially market relations and the coercion
exercised is legitimate market coercion. There is, however, no market
relation between one who stands in peril of death and one who holds the
means of his salvation. Here it is not caprice that gives the property-
owner the power to coerce, but a need-an objective requirement of moral
agency, something the individual cannot rightfully renounce. Here,
therefore, the withholding of the property is an act of pure or extra-
market coercion inconsistent with rights. Now Vincent v Lake Erie is both
like and unlike the case of the starving person. It is like that case because
it appears that nature rather than the will of the ship owner has suddenly
conferred on the dock owner a power to coerce. The sudden incursion of
the elements creates the impression of a 'necessity' that is extra-social.
Indeed, the only circumstance that distinguishes Vincent from the crane
cases is that in the latter the project of the builders creates the
opportunity for exploitation by the property-owner, whereas in Vincent it
is the sudden onset of the storm. Yet clearly this distinction is illusory.
The naturalness of the storm is but an image of the inward naturalness of
the needs of moral agency. And the image is obviously an imperfect one,
for at bottom it is only the ship owner's contingent desire for his boat that
binds him to the owner of the dock. Theirs is indisputably a market
relation, in which any bargain struck is consistent with rights. Should the
ship owner exclaim that his action was justified by necessity, therefore,
the appropriate response is the one Richelieu inappropriately gave to the
prisoner who, charged with a minor offence, pleaded the necessity to
preserve his life.”

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Necessity by Jerome E. Bicknebach

Canadian Journal of Philosophy6

The primary focus of this article will be on how best to understand the
compulsion which forces the agent to infringe the another’s rights or
interests .It explains some of the possible situations where the defence of
necessity is applicable. In the first place, the victim of agent’s necessitous
action may or may not cause of the circumstances which forced agent to
do what he did. When the victim is the cause, when the agent is
responding to a threat to his life brought about the intentional acts of
another, making the victim by Agents forceful response, the law
recognizes the defence of Self Defence as being available to the agent.
Strictly speaking, in other words, acting in Self Defence is acting under
necessity. It also says one may act under necessity for one's own benefit
or for the benefit of others. Early on, the law recognized two sorts of
cases: private and public necessity. Public necessity - for example, pulling
down someone else's house to prevent a fire from spreading throughout a
city- was thought to be a more easily justifiable defence: In the case of
private, or self-regarding necessity, one might initially be tempted to say
that the agent was 'forced' to act, in the sense that he reacted
automatically to an immediate threat to his life or property.

Case

Regina v. Dudley and Stephens7

Facts

6
Canadian journal of philosophy, vol. 13, No. 1 ( Mar, 1983) ,pp. 79-100
7
Regina v. Dudley and Stephens (1884) 14 QBD 273 DC [2]

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“The two respondents and a kid were cast away in an open watercraft
adrift after a tempest. The boat drifted in the ocean and was considered
to be more than one thousand miles from land. Stephens proposed that
parcels ought to be drawn with the failure being killed to give sustenance
to the staying two. Dudley and Stephens chose that the kid ought to be
executed with the goal that they could survive. On the twentieth day, with
the Agreement, Dudley killed the kid and both the litigants ate him for the
following four days until rescued. They were discovered liable of murder.
It was contended that the litigants trusted that in the conditions they
would kick the bucket except if the kid was slaughtered.”

Issue

“Whether defendant is a murder or not in the given circumstances?”

Rule of law

“There are three exemptions to claim defence from criminal responsibility

are:

• The act must be done to avoid other greater harm.

• The harm to be avoided must be such as to justify the risk of doing

An act likely to cause harm.

• The act have been committed in good faith without any criminal

Intention to cause harm”

Analysis

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“As important the conditions appeared where giving up one’s life would
spare the rest that it doesn’t legitimize kill. The way that Dudley and
Stephens picked the weakest individual to be the casualty likewise does
not legitimize that Parker couldn’t have survived. Rather, by slaughtering
him, it is just verifying that he had no possibility of survival.”

Conclusion

“Yes it is murder. Stephens and Dudley should sentence to death. The

Necessity of hunger does not allow anybody to do murder. Stephens and

Dudley were enticed to slaughter Parker yet allurement itself isn’t a

reason for killing him. Their shocking conditions likewise don’t enable
them to do kill.”

Conclusion

“Necessity is a defence under criminal law. For saving the life of a mother,

The doctor aborts the child. She takes a defence of necessity. Therapeutic

Staff may utilize opiates to execute torment, even, however they hasten

The demise of the patient, on the grounds that the benefit of sparing the

Patient from torment is desirable over the benefit of putting off death.

The commission has codified this defence as it make no sense to punish a

Person who acted out of necessity to prevent a greater harm. The

Arrangement was to incorporate the conspicuous cases, for example,

Speeding keeping in mind the end goal to achieve clinic in time. Two well-

Known cases, Ploof v. Putnam8 and Regina v. Dudley and

Stephens, present the problem of necessity more precisely.

8
Ploof v Putnam, 81 vt. 471, 71 a. 188 (1908)

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If a court confirmed that a given offense was administrative in nature, the

Statute approves a necessity defence. On the off chance that none were

Available, the protection would not be permitted. The enabling respondent

To use in administrative cases will have a tendency to occupy courts from

The work of other custom-based law guards.”

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REFERENCES

 https://www.casebriefs.com/blog/law/criminal-
law/criminal-law-keyed-to-kadish/the-justification-of-
punishment/regina-v-dudley-
 https://www.lawctopus.com/academike/necessity-as-a-
defence/
 https://scholarlycommons.law.northwestern.edu/cgi/viewc
ontent.cgi?article=5903&context=jclc
 https://www.lawctopus.com/academike/necessity-as-a-
defence/
 http://www.rotlaw.com/legal-library/what-is-necessity/

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