``NECESSITY AS A DEFENCE UNDER LAW OF TORTS’

Submitted by:

Tanushree, B.A. L.L.B. (Hons.)

Submitted to:

Ms. SNEHA SHARMA

Faculty of Law of Torts

This project is submitted in the partial fulfillment in Law of Torts for the completion of B.A.
L.L.B. course.

Chanakya National Law University, Mithapur

Patna.

1
 DECLARATION BY THE CANDIDATE………………………………………………..3

ACKNOWLEDGEMENT………………………………………………………………….4

I. Abstract………………………………………………………………………………5

1. Aims and objectives………………………………………………………5

2. Hypothesis………………………………………………………………...6
3. Methodology………………………………………………………………6

II. Introduction……………………………………………………………………………6
III. Meaning and Definition………………………………………………………………..7
IV. Factors affecting necessity……………………………………………………………..7
V. Types of necessity………………………………………………………………………8
VI. Importance of necessity…………………………………………………………………9
VII. Case law…………………………………………………………………………………14
VIII. Conclusion………………………………………………………………………………14
Bibliography……………………………………………………………………………..15

2
 DECLARATION BY THE CANDIDATE

I hereby, declare that the work reported in the L.L.B (Hons.) Project entitled ``Necessity as a
defense under law of Torts’’ submitted at CHANAKYA NATIONAL LAW UNIVERSITY,
PATNA is an authentic record of my work carried out under the supervision of Ms. SNEHA
SHARMA. I have not submitted this work elsewhere for any other degree or diploma. I am fully
responsible for the contents of my project report.

(Signature of the candidate)

Tanushree (2170)

B.A. L.L.B., 1st year

SEMESTER- 1st

CNLU,Patna.

3
 ACKNOELEDGEMENT

I would like to show my gratitude towards my guide Ms Sneha Sharma, faculty of Law of Torts,
under whose guidance, I structured my project.

I owe the present accomplishment of my project to my CNLU librarians, who helped us

immensely with materials throughout the project and without whom I couldn’t have completed it
in the present way.

I would also like to extend my gratitude to my friends and all those unseen hands that helped me
out at every stage of my project.

THANK YOU

TANUSHREE

SEMESTER-1st

CNLU,PATNA

4
Absract

The word tort has been derived from the latin term`tortum’,which means `to twist’.thus,``tort’’
means ``a conduct which is not straight or lawful,but,on the other hand,twisted,crooked or
unlawful.’’it is equivalent to the English term`wrong’.the law of torts consists of various `torts’
or wrongful act whereby the wrongdoer violates some legal right vested in another person.the
law imposes a duty to respect the legal rights vested in the members of the society and the person
making a breach of that duty is said to have done the wrongful act. as `crime’ is a wrongful
act,which results from the breach of a duty recognized by criminal law, a `breach of contract’ is
the non-performance of a duty undertaken by a party to a contract,similarly,`tort’ is a breach of a
duty recognized under the law of torts.For example , violation of a duty not to injure the
reputation of someone else’ results in the tort of defamation; violation of a duty not to interfere
with the possession of land of another person result in the tort of trespass to land; and,the
violation of duty not to defraud another results in the tort of deceit.

When the plaintiff brings an action against the defendant for a particular tort, providing the
existence of all the essentials of that tort, the defendant would be liable for the same. the
defendant may, however, even in such a case, avoid his liability by taking the plea of some
defence. there are some specific defences, which are peculiar to some particular wrongs, For
example, in an action for defamation, the defences of privilege, fair comment or justification are
available. there are some general defences which may be taken against action for number of
wrongs. For example, the general defence of `consent’ may be taken, whether the action is for
trespass, defamation, false imprisonment, or some other wrong. specific defences have been
discussed along with the particular torts to which they relate. and Necessity is one of the general
defences.

1. AIM AND OBJECTIVE

The primary objective of this project report is:

 To present the circumstances in which it is used.

 To analyse the cases mentioned and thus differentiating them on the basis of judgement.

5
 2. HYPOTHESIS

In necessity, there is an infliction of harm on ana innocent person.

3. METHODOLOGY

T his study has been carried out in a descriptive manner. Seconday and published documented data has
been collected through various sources and analysed accordingly. Many of the available literature and
study have also been consulted and reviewed to make the study more objective. No field work has been
carried out in the development of this work.

NECESSITY

I.1. INTRODUCTION

What is necessity defense exactly and how and under what circumstances might it work in law of
torts? As in the case of Baender v. Barnett a fire broke out in a maximum security prison, and
the prisoners, threatened by death, break out of their cells. Surely they are not guilty of the crime
of escape? Here’s a situation where most of us would agree that necessity could be a defense and
that the prisoners who broke out of their cells ``out of necessity’’ ought not to be convicted of
escape. The defense 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 based on
maxim salus populi suprema lex, i.e. `the welfare of the people is the supreme law ‘. Necessity
typically involves a defendant arguing that he committed the crime in order to avoid a greater
evil created by natural forces. Necessity as a justification (warranted or encouraged conduct
where the defendant is found not guilty of culpable). Necessity is an affirmative defense that a
defendant invokes the defense against the torts of trespass to chattels, trespass to land or
conversion. The early trial which took place was Regina v. Dudley and stephens (1884) 14
QBD 273 DC.

6
 I.2. Meaning and definition

Necessity as a defense is defined under section 81 in 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, and in
good faith for the purpose of preventing or avoiding other harm to person or property.’’

I.3. Factors affecting necessity

Affirmative defense

A Defendant typically invokes the defense against intentional torts of trespass to chattels, trespass to
land or conversion.

With the necessity defense there will always be a prima facie violation of the law.

A tort is a civil wrong for which unliquidated damages have to be compensated by the defendant even if
he did in case of necessity. The defense of necessity is only applicable only applicable when the
defendant is able to justify his unlawful acts. It seems to be generally assumed that, if the defense of
necessity succeeds, that is the end of the matter.

To present the defense at trial, defendants must need to meet the burden of provision of the four
elements:

They were forced with a choice of evils and choose the lesser evil.

They acted to prevent imminent harm.

They reasonably anticipated a direct casual relationship between their conduct and harm to be averted.

And, they had no legal alternatives to violating the law. These elements suggests that defense to the
liability for unlawful activity where the conduct cannot be avoided and one is justified in the particular
conduct because it will prevent the occurrence of a harm that is more serious. Historically the principle
has seen to be restricted to two groups of cases, which have been called cases of public necessity and
cases of private necessity. The act of plaintiff distinguishes the necessity of defense with other defenses.
But the better view is that necessity should be used by defendants who rationally chose an illegal course
of action that is the lesser of two evils.

7
 I.4. 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 defense is
partial defense which is available to the defendant which means the defendant who commits
trespass and claims the defense 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.

8
 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 a large. This is applied whwn any
trespass is done by a person to protect a greater community.

Public necessity is an absolute defense which means that the person 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 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 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.

1.5. Importance of necessity

Necessity incorporates flexibility into laws that would have lead to unjust results (that is,
punishment of desirable conduct) if applied mechanically. The defense of necessity applies to
situations where torture is morally justified. Like in case of a prisoner who breaks the prison and
runs away because he was mentally and physically tortured by the prison authorities. Necessity
provides relief in situation pertaining to this.`` Necessity’’ defense has the effect of allowing one

9
who acts under the circumstances of `necessity’ to escape criminal liability. Perhaps the
necessity defense should be thought of as a moral provision for mala in se offenses. Mala in se
offenses generally protect against harm to others, and to the extent that the necessity defense
defines situations in which one may harm others. The shape of the defense should track our
moral judgments about when it is morally permissible for a person to harm others.

Limiting the Necessity Defense

Necessity defense restricts the ways in which private citizens may use force that harms another’s
interest, the limited scope of the necessity defense is one of the many tools that help sustain the
state’s monopoly on legitimate violence exists to empower individuals where individuals are
supposed to be powerless; it cannot be used to confer powers on the state as well. Most
importantly it entirely depends appropriately for a government body to examine what is allowed
under the necessity defense and seek guidance as to what it is allowed to do. After all, the
government’s power is greater than what is allowed to private individuals under the necessity
defense, and the greater state’s monopoly on violence must necessarily include the lesser
individual’s use of violence. The necessity defense can be asserted only when compatible with
the particular federal crime at issue.

How necessity defense looked up by courts?

If a court determined that a given offence was regulatory in nature, the statute authorizes a
necessity defense. If none were present, the defense would not be allowed. The necessity
defense, by its nature, challenges and undermines that the given situation needed to choose from
the two evils. It carries the implication that violation of a given rule is positively desirable, thus
turning it in to a standard. Common law necessity requires that the harm be truly imminent. The
allowing defendants to use the necessity defense in regulatory cases will tend to distract courts
from the employment of other common law defenses. The cases where courts have expressly
ruled on the necessity defense’s availability, either on the facts or as a matter of law, can be
roughly divided into three main categories: a court may (1) grant a jury instruction on necessity
and allow the defendant to present evidence concerning it; (2) find the defense incompatible with
the offense involved; or (3) find that the defendant failed to meet his burden of production on at
least one element of the defense.

10
Trespass to Chattels, Land or conversion

With the necessity defense there will always be a prima facie violation of the law. The violation
will consist of trespass, conversion or other kinds of infringement of property rights. Under the
necessity doctrine, there is a weighing of interests: the act of invasion of another’s property is
justified under the necessity doctrine only if done to protect or advance some private or public
interest of a value greater than, or at least equal to, that of the interest invaded. A major issue
associated with both private and public necessity is whether compensation is owed to the
aggrieved party whose property is damaged, appropriated or destroyed. There is a general sense
in the doctrine of necessity that one 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. however, compensation must ordinarily be paid for
any harm done in the process. The comment to this section states that when necessary to prevent
serious harm, a person is privileged ``to break and enter or to destroy a fence or other enclosure
and indeed a building, including a dwelling only when the defendant’s action are reasonable’’.

Necessity under the common law

It seems that the courts do not accept that a defendant who has been charged with a criminal
offence can ever take advantage of a defense of necessity under the common law. So unless
some statute provides the defendant with a necessity type defense, it will not do the defendant
any good to plead, `In acting as I did, I did more good than harm.’ Such a plea will fall on deaf
ears.

This may seem a controversial claim, given the many cases in which the courts have begun to
recognize the existence of a general defense of necessity and set out the situations in which suach
a defense will be available to a defendant. However, in all those cases (except two) the courts
consistently run together the defense of necessity with the defense of duress of duress of
circumstances. They do this so consistently that when the courts talk of a defendant being
allowed to take advantage of a defense of `necessity’ it seems that they are really talking about
when a defendant will be allowed to take advantage of a defense of duress of circumstances.

11
Consider, for example, the following quote from Simon Brown J in R v Martin (1989) (driving
while disqualified):

`First, English law does, in extreme circumstances, recognize a defense of necessity. Most
commonly this defense arises as duress, that is pressure upon the accused will from the wrongful
threats or violence of another. Equally, however, it can arise from other objective dangers
threatening the accused or others. Arising thus it is conveniently called ``duress of
circumstances’’.

`Secondly, the defense is available only if, from an objective standpoint, the accused can be said
to acting reasonably and proportionately in order to avoid a threat of death or serious injury.

`Thirdly, assuming the defense to be open to the accused on his account of the facts, the issue
should be left to the jury, who should be directed to determine these two questions: first, was the
accused, or may he have been, impelled to act as he did because as a result of what he reasonably
believed to be the situation he had good cause to fear that otherwise death or serious physically
injury would result? Second, if so, may a sober person of reasonable firmness, sharing the
characteristics of the accused, have responded to that situation by acting as the accused acted? if
the answer to both those questions was yes, then the jury would acquit: the defense of necessity
would have been established.’

This passage was endorsed in R v Abdul- hussain(1998) (hijacking of plane) as providing `the
clearest and most authoritative guide to the relevant principles’ as to when a defense of necessity
would be available. (Which dictum was in turn approved in R v shayler (2001) (breach of official
secrets Act 1989) and R v S (2012) (Child abduction). ) But it is clear that Simon Brown J was
not talking about necessity at all – in the sense in which I have defined that defense – but was
rather talking about when a defendant will be liable to take advantage of a defense of duress
(either duress by threats or duress of circumstances). As we have already observed, duress is not
necessity. As Brooke LJ observed in In Re A (2001) (separation of conjoined twins), `In cases of
pure necessity the actor’s mind is not [as it is in duress cases] irresistibly overborne by external
pressures. The claim is that his or her conduct was not harmful because on a choice of two evils
the choice of avoiding the greater harm was justified.’

12
Despite this, the courts have continued to identify the defense of necessity with the defense of
duress of circumstances. In R v Conway (1989) (reckless driving), Woolf LJ held that:

`necessity can only be a defense to a charge of reckless driving where the facts establish ``duress
of circumstances,’’…i.e. where the defendant was constrained by circumstances to drive as he
did to avoid death or serious bodily harm to himself or some other person. whether ``duress of
circumstances’’ is called ``duress’’ or ``necessity’’ does not matter. What is important is that,
whatever it is called, it is subject to the same limitations as [the] ``do this or else’’ species of
duress.’

Twelve years on, in R v Shayler (2001, CA), Lord Woolf CJ was still of the same mind.
Dismissing arguments that necessity and duress were distinct in that necessity is a justification
and duress is an excuse, he said: `the distinction between duress of circumstances and necessity
has, correctly, been by and large ignored or blurred by the courts… the law has tended to treat
duress of circumstances and necessity as one and the same’.

The two cases that might genuinely be said to have recognized the existence of a defense at
necessity under the common law are Gillick v West Norfolk and Wisbech AHA (1986) and In Re
A (2001). Let’s look at each of these in turn.

In Gillick, the issue was whether a doctor who prescribed contraception to a girl who under 16
would be guilty of an offence under Section 28 of the Sexual Offences Act 1956 of causing or
encouraging unlawful sexual intercourse `of a girl under the age of sixteen for whom he is
responsible’. (Note that this offence was repealed by the Sexual Offences Act 2003, section 10 of
which makes it an offence to cause or incite someone who is under 16 to engage in a sexual
activity.) The majority (Lords Fraser, Scarman and Bridge ) took the view that a doctor may well
commit an offence under section 28 if he prescribed contraception to an under 16 years old girl
`with the intention of facilitating her having unlawful sexual intercourse’, but a doctor could not
be said to have such an intention if he was honestly prescribing the contraception `for the
maintenance or restoration of the girl’s health.’ (Both quotes from Lord Scarman’s judgment.)
The minority (Lords Templeman and Brandon) disagreed, holding that if a doctor prescribed
contraception to a girl who was under 16, he would be promoting, encouraging or facilitating the
having of sexual intercourse ( per Lord Brandon) and as a result would commit an offence under
section 28. None of the judgments in Gillick say anything about necessity: they were purely
concerned with the question of how section 28 of the 1956 Act should be interpreted. So there is

13
nothing in Gillick that can be said to support the existence of a defense of necessity under the
common law.

1.6. CASE LAW

 In the case of Dhania Daji vs. Emperor the accused was a Toddy-tapper. He
observed that toddy was being stolen from the trees regularly. To prevent it, he
poisoned toddy in some of the trees. He sold toddy from other trees. However, by
mistake, the poisoned toddy was mixed with other toddy, and some of the
consumers injured and one of them died. He took the plea of necessity however it
was rejected and he was prosecuted.

The limits of this defense of necessity were closely examined in the case of Olga Tellis
& Ors v. Bombay Municipal Corporation. Under the law of torts, necessity is a
plausible defense, which enables a person to escape liability on the ground that the acts
complained of are necessary to prevent greater damage, inter alia, to himself’’. The
defense is available if the act complained of was reasonably demanded by the danger or
emergency. In this case the slum dwellers claim of necessity was not accepted and they
had to vacate the public spaces which they had encroached upon.

Private necessity is the use of another’s property for private reasons. A property owner
cannot use force against an individual in a situation where the privilege of necessity
would apply. While an individual may have a private necessity to use the land or property
of another, that individual must compensate the owner for any damages caused.

1.7. CONCLUSION

It seems that the current state of law on when a defense of necessity (properly understood as a
justification resting on the argument `I did more good than harm’) will be available is justified if
necessity-type defenses are to be recognized under the law, it would be better if they were
created by parliament, rather than the courts. Giving effect to statutory necessity defenses would

14
pose no threat to doctrine of parliamentary sovereignty. Moreover, Parliament is in a better
position than the courts to judge when acting in particular way can be justified on the basis that
in that way did more good than harm, and to set out what factors are to be taken into account in
reaching that conclusion. Further, the statutory necessity-type defenses are less likely to be
abused or misused as their scope should be clearly delineated and understood in advance;
something that is not possible when the courts undertake to sketch out on a case-by-case basis
when they will permit a defendant to rely on a necessity defense.

BIBLIOGRAPHY

Books:

1. Dr R.K. Bangia Law of Torts

2. G.P. Singh, Law of Torts
3. Robert R. Cummins, Torts Law

Websites:

1. http://www.jstor.com/
2. http://lawoctopus.com/
3. http://www.scribd.com/
4. http://www.slideshare.net/
5. http://mcbridesguides.com/
6. http://www,e-lawresources.com/
7. http://blog.ipleaders.com

15