FIRST INTERNAL ASSESSMENT

LAW OF TORTS INCLUDING MV ACCIDENT AND CONSUMER PROTECTION

RESEARCH TOPIC: NECESSITY AS A DEFENCE UNDER THE LAW OF TORTS

NAME – VANSHIKA VERMA

PRN – 23010122021

COURSE NAME – LAW OF TORTS

WORD COUNT – 1686 (EXCLUDING FOOTNOTES AND CITATIONS)

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What is the Defence of Necessity?

If one looks into the Oxford English Dictionary, the word 'necessity' is simply defined as
something which is an 'essential' or something 'necessary', but this simple meaning holds
extreme importance and because of this reason, it was given the title of ‘defence’ under the legal
framework, and so can be used by an innocent to claim defence in the court of law. The doctrine
of 'Necessity' in the legal framework recognizes that there may have been certain extreme
critical circumstances that a person must be allowed to respond to by breaking the law.

Importance of the Doctrine of Necessity

'Necessity' is based on the maxim "salus populi suprema lex" which means that the 'welfare of
the people is the supreme law'. Laws that would have led to unfair outcomes if enforced
methodically are made flexible by ‘necessity’. The effect of the defence of necessity is to exempt
someone from criminal responsibility when they act in "necessity". The design of the defence
should reflect one's moral assessments of when it is acceptable for someone to injure another
person.It is a justification and an affirmative defence that a defendant invokes against the torts of
trespass to chattels, trespass to land or conversion. It 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 the reason of its being done with the
knowledge that it is likely to cause harm, if it be done without any criminal intent to cause
harm, and in good faith for the purpose of preventing or avoiding other harm to person or
property".
For example, in the case Leigh v Gladstone1, a woman prisoner was fed forcefully while she
was on a hunger strike, hence, the defendant was allowed the defence of necessity against the
action of batter i.e trespass to person because it was done to prevent greater danger.
Necessity is a pretty complex and a nuanced concept. Although it is recognized as a defence, it is
applied cautiously as the defendant claiming this defence should meet the specific criterias in
order to establish its applicability. It reflects the tension in the law of torts between preventing
any harm, to both individuals and the society, and to protect an individual’s rights. There are
certain specific elements in order to claim the defence of necessity:

1
Leigh v Gladstone (1909) 26 TLR 139

2
  The defendant in order to claim this defence must be able to clearly demonstrate that
they had faced danger which required immediate action to prevent any greater harm.

 The defendant must be able to prove that there were no other reasonable alternative
available in order to prevent the greater harm other than committing the tortious act. In
case it is proved that they was a slight chance of availability of other less harmful course
of action, then the defence cannot claim the defence of necessity.

 The defendant must be able to prove the proportionality of the tortious act committed.
The harm caused must be lesser than the harm that was averted.

Landmarks Cases

In the case of Cope V Sharpe2 , the defendant, in order to prevent the spreading of a fire to the
adjoining land, entered into the plaintiff’s land , because of which the defendant was sued but
since his act was considered to be reasonable necessary in order to save the property and from
real and imminent danger, the court favored the defendant and did not hold him liable for the tort
of trespass as he had committed the act out of necessity.

In R v Bourne3 , when a young girl was raped and impregnated, the defendant, who was a
gynaecologist, performed an abortion , but with the consent of the parents as he believed that the
girl would lose her life if she was permitted to give birth. The issue that arose in this case was
that whether the defendant, i.e the doctor guilty for unlawfully procuring the miscarriage, but the
court held that the act by the defendant was done in good faith and he being a doctor had
exercised his clinical judgment. The court in relation to this case also established that doctors
need not wait until their patient is in peril of immediate death, rather, in order to prevent the
consequences, the doctors must perform the operation. Thus, in order to save a life, the doctor
had committed an illegal act but he was not guilty as it was done in good faith.

In the landmark case of Ploof v Putnam4, the boat owner moored his vessel at the dock of the
plaintiff without any permission whatsoever, during a severe storm in order to prevent it from
2
Dls (2022) Cope v sharpe (no 2): CA 1912, swarb.co.uk. Available at: https://swarb.co.uk/cope-v-sharpe-no-2-ca-
1912/

3
R v Bourne, [1939] 1 KB 687

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any damage. When the plaint was filed, the court ruled in favour of the owner of the boat as the
defence of necessity was applied here and it was important to protect the boat from the storm.

In these cases, one can see various scenarios in which the defence of necessity was invoked. It is
important to pay attention to the fact that the application of this defence of necessity varies
depending on different circumstances and jurisdictions. Application of this defence requires a
careful balance of interests.

When it comes to cases in India, the Gullapalli Nageswara Rao v Andhra Pradesh State Road
Transport Corporation (APSRTC)5, was an important landmark case that dealt with the
defence of necessity under tort law. In this particular case, a bus which was owned by APSRTC,
caught fire because of certain mechanical issues, while travelling over a bridge. In order to
prevent the spread of the fire and a greater harm to the passengers, he drove the bus off the
bridge which caused significant damages to the bus. The court in this case realized the
importance of the action to prevent greater harm and so established a significant precedent
in Indian Tort Law regarding the defence of necessity. It clearly highlighted the fact that the
act which took place under genuine necessity to prevent greater harm can be valid and also
acknowledged practical judgement calls made by the individual during emergencies.

The 1996 landmark case Election Commissioner v. Dr. Subramanian Swamy6 is frequently
referred to as an illustration of the necessity defense. In this case, an Election Commissioner, Dr.
Subramanian Swamy, conducted certain activities that were theoretically infringing certain
legal provisions in order to prevent certain electoral malpractices. He challenged Ms. J
Jayalalitha’s appointment as the Chief Minister of Madras. He claimed that his activities
were motivated by a desire to safeguard the integrity of elections, and the court agreed,
highlighting the importance of protecting the democratic process. This case established a
precedent for individuals to justify otherwise illegal conduct when obliged by necessity to
preserve a larger communal interest, such as fair elections.

4
Ploof v. Putnam, 81 Vt. 471, 71 A. 188 (Vt. 1908)

5
Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1959 SC 308.
6
Election Commission of India v. Dr Subramaniam Swamy, (1996) 4 SCC 104

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Public Necessity and Private Necessity.

Public Necessity pertains to the actions taken up by either public authorities of by a private
individual in order to prevent a public harm. A classic example of public necessity is the
landmark case of Surocco v Geary7. This case involves destroying of a private property by the
public authorities in other to prevent the spread of fire that had broken out in San Francisco. The
sheriff, i.e the defendant instructed for the destruction of certain buildings to create firebreak.
The plaintiff had sued the defendant for demolishing his private property, however the court
favored the defendant hence establishing the principle of public necessity.8

Private Necessity pertains to the actions taken up due to self interests rather than from a
community at large. It occurs when the defendant does something to protect his own interests.
The principle applied for private necessity is “necessitas inducit privilegium quod jura
private” which means that ‘Necessity induces a privilege because of a private right’. One
landmark case under private defence is that of Vincent v Lake Erie Transportation Co9. Where
the ship owner intentionally ran it aground to prevent the ship from sinking during an impending
storm. The court here again held that the defence of necessity applied because it was important to
prevent a greater harm.

Can Necessity be a Valid Defence for Murder?

In extremely rare circumstances, the defence of necessity can be a valid defence for murder,
although highly unlikely and rarely successful. The case of R v Dudley and Stephens (1884)10 is
a classic example of this concept.

In the case of R v Dudley and Stephens, a group of men abandoned at sea had to resort
to cannibalism to live. They slaughtered and ate Richard Parker, a young cabin boy who was the
weakest of the group. They were charged with murder after being rescued. The defendants
7
Surocco v. Geary, 3 Cal. 69 (1853)
8
Cohan, John Alan (2007) "Private and Public Necessity and the Violation of Property Rights," North Dakota Law
Review: Vol. 83: No. 2, Article 6
9
Vincent v. Lake Erie Transp. Co., 109 Minn. 456, 124 N.W. 221

10
R v Dudley and Stephens, (1884) 14 QBD 273 DC

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claimed that they had no choice but to kill Parker in order to survive, and that it was a matter of
survival.11
Despite the extraordinary circumstances, the court still found them guilty of murder. The judges
ruled that necessity is not a legitimate justification for murder unless it is a true case of self-
defense in which one's life is in danger. This requirement was not met by the killing in R v
Dudley and Stephens because it was not a direct act of self-defence.
In general, the defence of necessity for murder is interpreted extremely restrictively and is rarely
adopted. It is usually required that the accused had no reasonable alternative but to kill in order
to save their own or another innocent person's life. Such situations are extremely unusual and are
frequently treated with mistrust by courts.

Conclusion
To conclude, one can say that the defence of necessity is a doctrine of last resort rather than
an excuse for causing any harm. This defence is subject to strict scrutiny and its success
completely depends on how one demonstrates the harm that was caused. Courts are extremely
cautious while ensuring that the harm caused was genuinely the last resort and that there was no
other alternative available. The necessity defence constraints the ways in which private citizens
may use force to harm another's preferences; it is one of many tools that helps in sustaining the
state's monopoly on legitimate acts of violence; it exists to empower the individual where
they are supposed to be powerless; it cannot be used to confer powers upon the state as well.
Most significantly, it is entirely upon the government body to analyze what is permissible under
the defence of necessity and seek clarification on what it is permitted to do. After all, the
government's power exceeds what private persons are allowed under the defence of necessity,
and the greater state's monopoly on violence must necessarily include the weaker individual's use
of violence. The defence of necessity is assertive only when it is compatible with the particular
federal crime at issue. “Defences like necessity, reaffirm the primary function of courts of law, to
administer justice in a particular case”12

11
Rex v. Bourne - University of Toronto Faculty of Law. Available at:
https://www.law.utoronto.ca/sites/default/files/documents/reprohealth/united_kingdom_1938_bourne.pdf
12
Jerome E. Bickenbach, ‘The Defence of Necessity’ (1983) < http://www.jstor.com/stable/40231302>

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BIBLIOGRAPHY

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