‘Necessity’ as a general exception to liability in torts.

‘Necessity knows no law’, is a common saying. It means that if the circumstances are crying for an immediate action, then it is not necessary that the law should be strictly followed. So necessity justifies an act which would otherwise be wrongful. The exception of necessity is founded on the maxim Salus Populi Suprema Lex (the welfare of the people is the Supreme Law). An act causing damage, if done under necessity to prevent a greater evil is not actionable even though harm was caused intentionally. But if the necessity has been brought about by the negligent conduct of the defendant then it does not afford a defence. Basis of his defence “is a mixture of charity, the maintenance of public good and self-protection, and it is probably limited to cases involving an urgent situation of imminent peril”.

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Familiar examples of the defence of necessity are pulling down a house on fire to prevent spread of fire, or throwing goods overboard to lighten a boat in a storm, or demolishing a building which has become dangerous and may fall on a public highway, etc. In Cope v. Sharpe (No. 2), a fire broke out on A’s land, A’s servants were busy in extinguishing the fire, the gamekeeper of C (who had shooting rights over A’s land) set fire to some strips of heather extinguished between the fire and some nesting peasants of C, in a short, while the fire was by A’s servants. A sued gamekeeper for trespass. The court held that the gamekeeper was not liable for there was a real and imminent danger to the game which justified the action taken by the defendant.

The above examples are instances of injury to property. But when there is necessity to save life, more latitude will be allowed in the protection of actor’s person than of his property, and still more where he is acting not for himself but for public safety. Though there is no decided case on this point but common sense and reasonableness are deciding factors.

The defence of necessity contemplates the causing of injury to an innocent person. But private defence pre-supposes that the plaintiff is a wrongdoer; he has provoked the defendant to do the act complained of.

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“Necessity” is a general exception to liability in tort law that recognizes that under certain circumstances, individuals may be justified in causing harm or infringing upon the rights of others in order to prevent a greater harm or protect a legitimate interest. The defense of necessity allows individuals to argue that their actions were reasonable and necessary given the specific circumstances, even though they may have caused harm or damage.

The defense of necessity typically requires the following elements to be established:

  1. Imminent danger: There must be a real and imminent danger or threat that the defendant reasonably believed required immediate action to avoid harm. The harm being prevented must be serious and outweigh the harm caused by the defendant’s actions.
  2. Proportionality: The defendant’s actions must be proportionate to the harm being prevented. This means that the harm caused should not be excessive or unreasonable in relation to the harm being averted.
  3. Lack of reasonable alternatives: The defendant must demonstrate that there were no reasonable alternatives available to prevent the harm or danger. If there were alternative courses of action that would have avoided the harm without causing harm to others, the defense of necessity may not be available.
  4. No voluntary contribution: The defense may be denied if the defendant voluntarily contributed to the circumstances that gave rise to the necessity.

The defense of necessity can arise in various contexts, including property damage, trespass, or interference with another person’s rights. For example, if a person trespasses onto another’s property to escape a life-threatening situation or to prevent serious harm, they may argue that their actions were necessary given the circumstances.

It is important to note that the defense of necessity is not absolute and is subject to limitations. Courts carefully evaluate the reasonableness of the defendant’s actions and weigh the competing interests involved. The defense does not provide a license to act recklessly or irresponsibly but rather recognizes that in certain situations, individuals may be justified in causing harm to avoid a greater harm.

Additionally, the availability and application of the defense of necessity can vary among jurisdictions. Some jurisdictions have recognized a broader application of the defense, while others have adopted a more restrictive approach. The specific elements and requirements for establishing the defense may also differ depending on the jurisdiction and the particular circumstances of the case.

In Arignar Anna Bus Stand Small Scale Retail Trader’s Association v. Commissioner, Madurai Corp., it was held that an encroacher of public property cannot claim an alternative site as a precondition to his removal. Supreme Court also confirmed the trend in Grahak Sanstha Manch v. State of Maharashtra. The Court held that the State Government cannot be compelled to provide alternative accommodation to allottees of requisitioned premises when the premises are derequisitioned.

In summary, the defense of necessity in tort law allows individuals to justify their actions that would otherwise be considered tortious if they can demonstrate that their actions were reasonable, proportionate, and necessary to prevent a greater harm. The defense recognizes that in exceptional circumstances, individuals may need to infringe upon the rights of others to protect legitimate interests and prevent imminent danger. However, the defense is subject to scrutiny by the courts, and its application depends on the specific circumstances and jurisdiction involved.

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