TAMIL NADU NATIONAL LAW SCHOOL

THIRUCHIRAPALLI
I Year I Semester B.A.LL.B.(Hons.) Degree Course

PAPER -

TORTS

CODE HAA

Name of the Supervisor: Ms. Golda Sahoo

Submitted by
Prakhar Bhatt
Roll no.: BA0150030
Tamil Nadu National Law School
E-mail: [email protected]
B.A LLB First Year
Trichy, India

MARKS AWARDED:
ACKNOWLEDGEMENTS:

1. I thank the TNNLS administration and the library for the abundant academic resources
and internet facility provided that made my project possible.
2. I thank Ms. Golda Sahoo, Assistant Professor, TNNLS for her guidance and kindness to
review my project.
3. I thank my friends, seniors and other professors for their constant support and guidance.

DECLARATION.

I Prakhar Bhatt hereby declare that this project work undertaken and submitted by me as a part
of Internal assessment for Torts paper is a original work and is not submitted to any other
university for assessment or examination.

NECESSITY AS A DEFENCE UNDER TORT LAW

Introduction
What is the necessity defense precisely and how and under what circumstances may it work in
law of tort? 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? Heres 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 for 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 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 D.
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, 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.

GENERAL DEFENCES 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 worng, for example, in an action of 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 tresspass, defamation, false imprisonment, or some other wrong.
Specific defences have been discussed along with the particular torts to which they relate. The
general defences discusssed below are as follows :

1.
2.
3.
4.
5.
6.
7.
8.

Volenti non fit injuria, or the defence of consent

Plaintiff, the wrongdoer
Inevitable accident
Act of god
Private defence
Mistake
Necessity
Statutory authority1

1)

volenti non fit injuria when a person consents to the infliction of some harm upon
himself, he has no remedy for that in tort. In case, the plaintiff voluntarily agrees tp suffer
some harm, he is not allowed to complain for that and his consent serves as a good
defence against him. No man can enforce a right which he has voluntarily waived or

abandoned. Consent to suffer harm may be express or implied.

2) Plaintiff the wrongdoer under the law of contract, one of the principles is that no court
will aid a person who found his cause of action upon an immoral or an illegal act. The
maxim is ex turpi causa non oritur actio which means, from an immoral cause no
action arises. It means that if the basis of the action of the plaintiff is an unlawful
contract, he will not, in general, suceed to his action.
3) Inevitable accident accident means an unexpected injury and if the same could not
have been forseen and avoided, in spite of reasonable care on the part of the defendant, it
is inevitable accident. According to pollock,it does not mean absolutely inevitable, but it
means not avoidable by any such precautions as a reasonable man, doing such an act then
and there, could be expected to take. It is, therefore, a good defence if the defendant can
show that he neither intended to injure the plaintiff nor could he avoid the injury by
taking reasonable care.
4) Act of god act of god is a defence. The rules of strict liability, i.e., the rule in rylands v.
fletcher, also recognizes this to be a valid defence for the purpose of liability under that
rule. Act of god is a kind of inevitable accident with the difference that in the case of act
of god, the resulting loss arises out of the working of natural forces like exceptionally
heavy rainfall, storms, tempests, tides and volcanic eruptions. It has been explained in
Halsburys laws of England.
5) Private defence the law permits use of reasonable force to protect ones person or
property. If the defendant uses the force which is necessary for self defence, he will not
be liable for the harm caused thereby. The use of force is justified only for the purpose of
defence. There should be imminent threat to the person safety or property.
6) Mistake - mistake, whether of fact or law, is generally no defence to an action for tort.
When a person willfully interfers with the rights of another person, it is no defence to say
that he had honestly believed that there was some justification existed. Entering the land
of another thinking that to be ones own is trespass.
7) Necessity an act causing damage, if done under necessity to prevent a greater evildoer
is not actionable even though harm was caused intentionally. Necessity should be

distinguished from private defence. In necessity, there is an infliction of harm on an

innocent person whereas in private defence, harm is caused to a plaintiff who himself is
the wrong. Necessity is also different from inevitable accident because in necessity, the
harm is an intended one whereas in inevitable accident, the harm is caused in spite of best
effort to avoid it.
In cope v. Thomas the defendant, who entered the plaintiffs premises in good faith to
extinguish fire at which the firemen had already been working, was held liable for
trespass.
In kirk v. Gregory, after As death, As sister-in-law removed some jewellery from the
room where he lay dead to another room, thinking that to be a safer place. From there, the
jewellery was stolen. In an action by As executors against As sister-in-law for trespass to
the jewellery, it was held that since the interference was not reasonably necessary, she
was liable.

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 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.
BURDEN OF PROOF
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 the 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 been 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.
Types of necessity

Public Necessity
Public necessity pertains to action taken by public authorities or private individuals to avert a
public calamity. The action consists in destroying or appropriating anothers property. The classic
example of public necessity is the destruction of private property to prevent the spread of fire or
disease and hence to avert an injury to the public at large. Public necessity is in operational
where the police trespass on damage. Private property in order to apprehend a criminal suspect or
gain access to the site of an emergency. The principle behind public necessity is that the law
regards the welfare of the public as superior to the interest of individuals and when there is a
conflict between the latter must give way. Public necessity serves as an absolute defense. The
first case which was filled with reference to public necessity was Surocco v Geary.
With this illustration public necessity is being defined. A ship which had run into difficulties
found it necessary to discharge her cargo of oil, thereby polluting beaches which belong to the
plaintiff. Since the discharge of the oil was necessary to save the crew, and not only the ship, it
was accepted that the defense of necessity applied.
Private Necessity
Private necessity arises from self interest rather than from a community at large. It takes place
when the defendant wants to protect his own interest. It does not serve as an absolute defense
unlike in the case of public necessity. Private necessity can be explained with the following
example. If defendant entered upon his neighbors land without his consent, in order to prevent
the spread of fire into his own land. The principle applied for private necessity is necessitas
inducit privilegium quod jura private, meaning Necessity induces a privilege because of a
private right. This maxim makes it clear that private defense its more kind of a privilege enjoyed
by many person. The earliest case of private defense was Vincent v. Lake Erie Transp. Co.
There is, however, a third group of case, which is also properly described as founded upon the
principle of necessity and which is more pertinent. These cases are concerned with action taken
as a matter of necessity to assist another person without his consent. To give a simple example, a
man who seizes another and forcibly drags him from the path of an oncoming vehicle, thereby
saving him from injury or even death, commits no wrong.

These are concerned not only with the preservation of the life or health of the assisted person, but
also with the preservation of his property (sometimes an animal, sometimes an ordinary chattel)
and even with certain conduct on his behalf in the administration of his affairs.
Importance of Necessity
Necessity incorporates 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
situations where torture is morally justified. Like in the 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 who acts under the circumstances of necessity to escape criminal liability. Perhaps
the necessity defense should be thought of as a moral provision formala in se offenses. Mala in
se offenses generally protect against harms 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.
Necessity under criminal law In case of necessity under criminal law, the most important
element of crime that is mens rea is absent, so the act commited under necessity is forbidden by
criminal law.
1 act done to avoid other or bigger harm an act done with the knowledge that it is likely to
cause harm, but done in good faith, and without criminal intent to causew harm. A large number
of general exceptions especially where a person is knowingly committing an act, is excused from
criminal liability as the person is said to have acted under good faith rather than criminal intent.
Good faith is defined under section 52 of the IPC. The definition contained in it is negative
in character. Good faith essentially implies that a person acting in a manner is doing the
act with a good intention (not good motive), as he or she did not wish to commit a crime
but a beneficial, necessary or legally prescribed act.
Limiting the Necessity Defense

Necessity defense restricts the ways in which private citizens may use force that harms anothers
interest, the limited scope of the necessity defense is one of many tools that help sustain the
states 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
governments power is greater than what is allowed to private individuals under the necessity
defense, and the greater states monopoly on violence must necessarily include the lesser
individuals 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 offense 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 defenses 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.

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 anothers 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 ones own land, to ones 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 defendants action are reasonable.

CONCLUSION

The conclusion that one can reach is that necessity considers circumstantial morality and
provides one to be saved from his circumstantial offence. Necessity else than been a new defence
is also an evolving concept, which one can see through the Vincent case and as well as R v.
Dudley and Stephens case, which cleared some essentials regarding it. The way it will evolve

will depend on, how the judiciary interprets it in future cases. There is no doubt that, it has
attracted some critical criticism and which also do make some sense as it was in obiter dicta in R
v. Dudley and Stephens, where it was said not every necessity can be ground for necessity
otherwise, there will be utter chaos and nothing else, this inference of the judge seems very true