Law and You > Law of Tort > Defence of Necessity in Tort Law
Introduction
General Defences in Tort Law
Defence of Necessity
Key Ingredients of Defence of Necessitty
Examples of Defence of Necessity
Limits and Exceptions of Defence of Necessity
Case Laws for Defence of Necessity
Conclusion
Related Topics
The word “Tort” is of a French origin which has been further derived from the Latin word “Tortum” meaning “to twist” and implies conduct which is tortious4or twisted. It is a species of civil injury or wrong. A tort is a wrongful act or an infringement of a right (other than under contract) leading to legal liability and for which civil courts award compensation. Section 2 of Limitation Act 163 defines it as ‘a civil wrong which is not exclusively the breach of contract or breach of trust’. For example, to stop or obstruct a person to perform his legal right is a tort. (Case Ashby v. White), In this article, we shall discuss the concept of tort and law of tort. In tort law, a defence is a legal justification or excuse that a defendant may raise to avoid liability for committing a tort (a wrongful act). These defences either negate the elements of the tort or justify the defendant’s actions under the circumstances. In this article, let us discuss the defence of necessity in tort law.
General Defences in Tort Law:
In tort law, several defences are available to a defendant who is being sued for a tort. These defences can either completely absolve liability or reduce the amount of damages. Here’s a list of common defences in tort:
- Consent (Volenti Non Fit Injuria): If the plaintiff consented to the act that caused the harm, the defendant may not be liable. Consent can be express or implied.
- Self-Defence: A defendant can avoid liability by proving that the tortious act was necessary to protect themselves from harm. The force used must be reasonable and proportionate to the threat.
- Defence of Others: Similar to self-defence, a defendant may claim they acted to protect someone else from harm. Again, the force used must be reasonable.
- Defence of Property: A person is allowed to use reasonable force to protect their property. However, the force must be proportional and not excessive.
- Necessity: This defence applies when a tortious act was done to prevent greater harm to the defendant, others, or property. For example, trespassing to escape an imminent danger may be excused under necessity.
- Statutory Authority: If the defendant was acting under statutory authority (i.e., following the law or legal procedures), they may be excused from liability, even if harm resulted.
- Contributory Negligence: If the plaintiff’s own negligence contributed to their injury, they may be barred from recovering damages (in jurisdictions that still recognize contributory negligence as a complete defence).
- Comparative Negligence: Similar to contributory negligence, but in this case, damages are apportioned based on the relative fault of the plaintiff and defendant. The plaintiff’s recovery may be reduced but not entirely barred.
- Act of God (Force Majeure): A defendant may avoid liability if the harm was caused by an extraordinary natural event (such as a flood, earthquake, or storm) that was unforeseeable and unavoidable.
- Inevitable Accident: This defence asserts that the incident causing harm was unavoidable, even with reasonable care, and therefore, the defendant should not be held liable.
- Mistake: A defendant may argue that the tortious act was the result of a mistake, but this defence is generally weak unless the mistake was reasonable and unavoidable.
- Private Defence: A person may defend themselves or their property against the wrongful acts of others, provided the defence is proportionate to the threat.
- Duress: A defendant may claim they were forced to commit a tort due to the threat of harm, making their actions involuntary.
- Illegality (Ex Turpi Causa Non Oritur Actio): If the plaintiff was involved in illegal activity at the time of the tort, the defendant might avoid liability on the basis that a claim cannot arise from the plaintiff’s wrongful conduct.
- Limitation Period (Statute of Limitations): A claim in tort must be brought within a specified time period. If the plaintiff files the claim too late, the defendant can raise the limitation period as a defence.
Each of these defences has its own criteria and conditions, and their applicability depends on the jurisdiction and the specific circumstances of the case.
Defence of Necessity
Necessity is a defence in tort law that justifies actions that would otherwise constitute a tort if the defendant acted to prevent a greater harm in an emergency situation. It is an excuse that applies when a defendant’s actions, although technically wrongful, were necessary to protect life, property, or a public interest from imminent danger or harm. The necessity defence recognizes that, in certain urgent or emergency situations, violating the law may be the only reasonable course of action.
Types of Necessity:
- Public Necessity: This applies when the defendant’s actions are taken to protect the public or a community from a significant danger, often in emergencies or disasters. Public necessity justifies harm caused to private property or individuals if it was necessary to prevent harm to the general public. For example, in the event of a major fire spreading through a neighbourhood, fire fighters or authorities may destroy some private homes to create a firebreak and prevent the fire from spreading further. In such cases, the destruction of private property may be justified by public necessity, and the defendant (fire fighters or authorities) would likely not be held liable for damages.
- Private Necessity: Private necessity occurs when the defendant’s actions were necessary to protect their own interests or the interests of a limited number of people, such as in a situation involving personal safety or property. Unlike public necessity, private necessity may require the defendant to compensate for any harm caused, even if the defence applies (i.e., the action was justified, but damages may still be awarded). For example, a person caught in a severe storm may dock their boat on private property to avoid sinking. While they are justified in doing so to protect their life or property, they may still have to pay for any damage caused to the private dock.
Key Ingredients of Necessity:
- Imminent Danger or Emergency: The defence of necessity can only be invoked when there is an immediate or imminent danger, and the defendant’s actions were necessary to prevent a greater harm from occurring. The threat must be real and pressing, rather than speculative or future.
- No Reasonable Alternative: The defendant must show that there was no reasonable alternative but to take the action they did. If there were other, less harmful options available, the necessity defence might not apply.
- Proportionality: The actions taken in response to the danger must be proportional to the threat faced. The harm caused by the defendant must be less than the harm that was avoided by taking the action.
- No Fault of the Defendant: The defendant cannot invoke necessity if they were responsible for creating the emergency or dangerous situation in the first place. The emergency must arise independently of the defendant’s own wrongdoing.
Examples of Necessity Defence in Tort:
- Trespass to Land: A person may use necessity as a defence to trespass to land if they entered someone’s property to avoid serious harm or danger. For example, if a hiker is lost in a dangerous storm and enters private property for shelter, they may invoke necessity to avoid liability for trespassing.
- Damage to Property: If a person damages someone else’s property to prevent greater damage, such as breaking into a car to rescue a child trapped inside during a heat wave, they can argue that their actions were justified by necessity.
- Trespass to Chattels: Private necessity may also be invoked in cases involving personal property (chattels). For example, if someone borrows another person’s car to drive a critically ill person to the hospital, they may rely on necessity as a defence against trespass to chattels, although they may still be liable for any damage done to the car.
Limits to the Necessity Defence:
- Compensation: In cases of private necessity, the defendant may still be required to compensate the plaintiff for the damage caused, even if the defence is successful. This contrasts with public necessity, where no compensation is generally required.
- Scope of the Danger: The danger must be imminent and serious. The defence of necessity does not apply if the danger was trivial or if the defendant could have taken other reasonable steps to avoid the harm.
- Defendant’s Fault: The necessity defence is unavailable if the defendant was responsible for creating the dangerous situation. For example, a defendant cannot claim necessity if they set fire to their own property and then destroyed a neighbor’s property to stop the fire from spreading.
- Proportionality: The response must be proportionate to the danger. If the defendant’s actions go beyond what was necessary to avert the harm, the defence may not succeed.
Case Laws:
In Southwark LBC v. Williams, [1971] Ch 734 case , homeless individuals entered a property without permission, claiming it was necessary for their survival. The court rejected the argument of private necessity because it could not override property rights in such circumstances. The defence of public necessity may only be invoked when the public interest, rather than individual interest, is at stake.
In Vincent v. Lake Erie Transportation Co., 124 N.W. 221 case, a ship owner docked their vessel at a private dock during a violent storm to protect the ship from being damaged. The ship caused damage to the dock during the storm. The court held that the ship owner was justified in protecting the ship (private necessity) but was still required to compensate the dock owner for the damage caused.
In Cope v. Sharpe (No. 2), [1912] 1 KB 496 case, the defendant entered the plaintiff’s land without permission to stop a fire that was spreading towards a nearby plantation. The court found that the defendant’s actions were justified by necessity because they acted to prevent greater harm (the destruction of the plantation).
In Esso Petroleum Co. Ltd v. Southport Corporation (1956) case involved a ship that discharged oil into the sea to avoid running aground, which damaged the coastline. The ship’s owners argued necessity to avoid greater damage to the ship and crew. The court recognized the defence of necessity but still required compensation for the damage to the coastline.
The defence of necessity allows individuals to justify actions that would otherwise be tortious when they are taken to prevent greater harm or danger. The defence applies in cases of both public necessity, where actions are taken to protect the public interest, and private necessity, where the defendant acts to protect personal interests. However, the defence is limited by the requirements of proportionality and imminence of the danger, and in cases of private necessity, the defendant may still have to compensate the plaintiff for any damage caused. Courts carefully assess the facts to ensure that the defendant acted reasonably and had no alternative but to take the actions in question.
Conclusion:
The defence of necessity in tort law allows a defendant to escape liability for actions that would otherwise be tortious, provided those actions were necessary to prevent a greater harm. This defence is based on the principle that, in emergency situations, certain acts may be justified when they are the only reasonable means to avoid imminent and significant harm. Necessity applies to situations where the defendant’s actions are driven by circumstances beyond their control, such as natural disasters or life-threatening events.
For the defense of necessity to succeed, the harm avoided must outweigh the harm caused, and the defendant’s actions must be reasonable and proportionate under the circumstances. The necessity must be urgent and not self-created; the defendant cannot rely on this defense if they could have taken another course of action to avoid the situation. Moreover, the defense may not apply if the rights of an innocent third party are violated in the process, except in extreme circumstances.
Overall, necessity serves as an important balancing tool in tort law, recognizing that, in exceptional cases, individuals may be compelled to act in ways that would ordinarily be unlawful. It reflects the law’s flexibility in accommodating human responses to emergency situations, but it remains a narrowly interpreted and carefully scrutinized defence.
Related Topics:
General Defences in Tort Law
- Consent (Volenti Non Fit Injuria)
- Self Defence
- Defence of Others
- Defence of Property
- Contributory Negligence
- Illegality (Ex Turpi Causa Non Oritur Actio)
- Act of God (Force Majeure/Vis Major)
- Statutory Authority
- Inevitable Accident
- Mistake
- Duress
- Limitation Period