Model Answer
0 min readIntroduction
Tort law deals with civil wrongs that cause someone else to suffer loss or harm resulting in legal liability for another person. Generally, a person is liable for the consequences of their actions. However, certain defences can negate or mitigate this liability. One such defence is ‘necessity’, which justifies an otherwise tortious act when committed to prevent a greater harm. This defence acknowledges that in certain extraordinary circumstances, violating another’s legal rights may be the lesser evil. The principle stems from the common law and has been refined through judicial pronouncements over time.
Understanding the Defence of Necessity
The defence of necessity arises when an act, which would otherwise be a tort, is excused because it is reasonably justified to avoid an imminent and greater peril. It’s not a justification for intentional wrongdoing, but rather a recognition that in dire circumstances, choosing the lesser of two evils is permissible. The core principle is that the harm caused by the tortious act must be significantly less than the harm avoided.
Conditions for Successfully Invoking the Defence
Several conditions must be met for the defence of necessity to succeed:
- Imminent Peril: There must be an immediate threat of harm. A future or hypothetical danger is insufficient.
- Reasonable Belief: The defendant must genuinely and reasonably believe that their actions were necessary to avert the peril.
- Proportionality: The harm caused by the act must be proportionate to the harm avoided. The response must be reasonable in the circumstances.
- No Legal Alternative: There must be no other legal or reasonable alternative available to avoid the peril.
- Defendant Not at Fault: The defendant must not have contributed to the creation of the peril.
Classes of Necessity
Courts have recognized different classes of necessity, each with varying degrees of stringency:
1. Public Necessity
This arises when an act is justified to prevent a greater public catastrophe. It allows for the sacrifice of individual rights for the benefit of the wider community. The defence is absolute, meaning the defendant is not liable even if their actions cause damage to another’s property.
Example: During a widespread fire, demolishing a building to create a firebreak and prevent the fire from spreading to a larger area, even if it causes damage to the building owner.
2. Private Necessity
This arises when an act is justified to protect the defendant’s own property or person, or the property or person of another, from imminent harm. Unlike public necessity, private necessity is not an absolute defence. The defendant is liable for any damage caused to the plaintiff’s property, but can claim a right to remuneration (compensation).
Example: Trespassing onto another’s land to escape a raging bull, causing damage to the land in the process. The trespasser is liable for the damage but has a valid defence against an action for trespass itself.
3. Necessity of Self-Defence
This is a specific form of private necessity relating to the protection of one’s person. It allows a person to use reasonable force, even if it causes harm to another, to defend themselves from an imminent threat of harm. The force used must be proportionate to the threat.
Example: Using reasonable force to repel an attacker, even if it results in injury to the attacker.
Illustrative Case Law
Askew v. Atkinson (1891) 1 QB 325: This case established the principle that necessity can justify trespass. The defendant trespassed onto the plaintiff’s land to rescue his sheep during a storm. The court held that the trespass was justified under the defence of necessity.
Rigby v. Chief Constable of Norfolk [1985] AC 58: This case clarified the limits of the public necessity defence, stating that it must be truly a matter of public safety and not merely a matter of convenience.
Conclusion
The defence of necessity provides a crucial exception to the general rule of tortious liability, acknowledging that extraordinary circumstances may justify actions that would otherwise be unlawful. Understanding the conditions and classes of necessity is vital for a comprehensive grasp of this defence. While it offers a shield against liability, its application is carefully scrutinized by courts to ensure it is invoked only in genuine and compelling situations, balancing individual rights with the need to prevent greater harm.
Answer Length
This is a comprehensive model answer for learning purposes and may exceed the word limit. In the exam, always adhere to the prescribed word count.