NATIONAL LAW UNIVERSITY,

LUCKNOW
Project of Law Of
Torts
TOPIC- NECESSITY AS
DEFENCE

Submitted by:
Submitted to:
HEMANT SAGAR
Gitu Singh

Asst. Prof.

B.A. LLB (Hons.)

Associate

Teaching

I Semester
Roll Number- 56

ACKNOWLEDGEMENT
I hereby take this opportunity to thank all those without whose support, faith in my
abilities and guidance I would never have been able to finish my project.
I am indebted to my faculty Asst Prof. Geetu Singh for guiding me throughout
this project Necessity as defence without which this work of mine would never
seen the light of the day.
I also want to thanks my friends for giving the great support and being the fantastic
critique that they were which helped me to improve my project in every way.
And last, but not the least, I thank my parents who supported and encouraged me
to proceed with courage and determination so as I leave no stone upturned.
Without all these people, I suppose that I would have never been able to even think
about making this project.

Contents:
1) INTRODUCTION
2) NECESSITY
3) INTRODUCTION TO THE DEFENCE OF NECESSITY
4) THE HISTORY OF THE DEFENCE OF NECESSITY
5) THE UTILITY OF THE DEFENCE OF NECESSITY
6) TYPES OF NECESSITY:
i) Private necessity
ii)Public necessity
7) CONCLUSION
8) BIBLIOGRAPHY

INTRODUCTION:
The necessity defense has long been recognized as Common Law and has also
been made part of most states' statutory law. Although no federal statute

acknowledges the defense, the Supreme Court has recognized it as part of the
common law. The rationale behind the necessity defense is that sometimes, in a
particular situation, a technical breach of the law is more advantageous to society
than the consequence of strict adherence to the law. The defense is often used
successfully in cases that involve a Trespass on property to save a person's life or
property. It also has been used, with varying degrees of success, in cases involving
more complex questions.
The defense of necessity is considered a justification defense, as compared with an
excuse defense such as duress. An action that is harmful but praiseworthy is
justified, whereas an action that is harmful but ought to be forgiven may be
excused. Rather than focusing on the actor's state of mind, as would be done with
an excuse defense, the court with a necessity defense focuses on the value of the
act. No court has ever accepted a defense of necessity to justify killing a person to
protect property.
Most states that have codified the necessity defense make it available only if the
defendant's value choice has not been specifically contradicted by the state
legislature. For example, in 1993 the Massachusetts Supreme Judicial Court
rejected the necessity defense of two people who were prosecuted for operating a
needle-exchange program that was intended to reduce the transmission of AIDS
through the sharing of contaminated hypodermic needles (Massachusetts v. Leno,
415 Mass. 835, 616 N.E.2d 453). Their actions violated a state law prohibiting the
distribution of hypodermic needles without a physician's prescription. In rejecting
the defense, the court held that the situation posed no clear and imminent danger.
The court reasoned that citizens who disagree with the legislature's policy are not
without remedy, as they can seek to have the law changed through popular
initiative.

NECESSITY:
In tort common law, the defense of necessity gives the State or an individual a
privilege to take or use the property of another. A defendant typically invokes the
defense of necessity only against the intentional torts of trespass to chattels,
trespass to land, or conversion. The Latin phrase from common law is necessitas
inducit privilegium quod jura privata, "Necessity induces a privilege because of a
private right." A court will grant this privilege to a trespasser when the risk of harm
to an individual or society is apparently and reasonably greater than the harm to
the property. Unlike the privilege of self-defense, those who are harmed by
individuals invoking the necessity privilege are usually free from any wrongdoing.
Generally, an individual invoking this privilege is obligated to pay any actual
damages caused in the use of the property but not punitive or nominal damages.
Necessity may be either a possible justification or an exculpation for breaking the
law. Defendants seeking to rely on this defense argue that they should not be held
liable for their actions as a crime because their conduct was necessary to prevent
some greater harm and when that conduct is not excused under some other more
specific provision of law such as self defense. Except for a few statutory
exemptions and in some medical cases there is no corresponding defense in
English law. For example, a drunk driver might contend that he drove his car to get
away from a kidnap (cf. North by Northwest). Most common law and civil law
jurisdictions recognize this defense, but only under limited circumstances.
Generally, the defendant must affirmatively show (i.e., introduce some evidence)
that (a) the harm he sought to avoid outweighs the danger of the prohibited
conduct he is charged with; (b) he had no reasonable alternative; (c) he ceased to
engage in the prohibited conduct as soon as the danger passed; and (d) he did not
himself create the danger he sought to avoid. Thus, with the "drunk driver"
example cited above, the necessity defense will not be recognized if the defendant
drove further than was reasonably necessary to get away from the kidnapper, or if
some other reasonable alternative was available to him. However case law
suggests necessity is narrowed to medical cases.

INTRODUCTION
NECESSITY:

TO

THE

DEFENCE

OF

It is often said that the criminal law prescribes punishment for offenders in order to
deter undesirable conduct. However, deterrence only constitutes as one of the few
functions of the criminal law. The criminal law also serves, inter alia, the informal
function of setting and modifying the social norms which regulates behaviour
within the society. The prescription of legal punishment for infraction of the penal
rules expresses moral condemnation for the act, indicating that such an act is
unacceptable by the public morality of the society. Accordingly, the criminal law
reflects and reinforces societal values and expectations and by regarding the
conduct as justified or excused by the law, conveys messages to the public on
whether the conduct was rightfully justified or wrong but morally excusable in the
eyes of the law. The defence of necessity mirrors the principles of justice
embodied in the conventional public morality represented by the system of
criminal law. It appeals to the broader principles of justice that serves as the
underlying ends and values of the criminal legal system. An acquittal achieved by
successfully invoking the defence of necessity expresses the conclusion that the
putative crime of conscience or moral involuntariness cannot constitute to a crime
in the eyes of the public, and hence the eyes of the law. Rather, the wrongful
conduct can be justified by the appeal for the purposes and principles embodied
within public morality which, arguably, underlies the criminal legal system.
Therefore, accused persons who acted within the scope of the defence of necessity
do not merit the moral condemnation that is inherent in criminal convictions.
The defence of necessity can be considered as the conceptual touchstone for issues
regarding the purpose of criminal law and the nature of criminal responsibility and
liability. The defence elicits the understanding of blameworthiness and tests the
framework of values within the legal system.
While different societies may have a different values and accepted social norms, it
is arguably universal (at least in the modern civilised world) that a morally
innocent person, compelled by the moral goodness of an act or the extenuating
circumstances into violating the law, should not be punished. This principle of
fault-based imposition of criminal liability and punishment is fundamental to all
modern systems of criminal law.

THE HISTORY
NECESSITY :

OF

THE

DEFENCE

OF

As Alan Watson pointed out, one of the categories of a voluntary major transplant
would be when a people moves into a different territory where there is no
comparable civilisation, and takes its law with it. However, this was not exactly
what transpired in the case of India. By the Government of India Act 1833, the
position of legal member of the Governor-Generals Legislative and Executive
Council of India was created. This position was first occupied by Lord Macaulay.
Prior to this, there was a diversified government with no centralised authority and
different provinces were ruled and run independent of each other.
The Government of India Act 1833 made provision for the appointment of a Law
Commission to advise on and propose schemes of a comprehensive and
homogenous body of legal code for the entire India, and Lord Macaulay was
appointed the head of the Legal Commission for the Indian Penal Code. The need
for a uniform penal code with jurisdiction over both natives and European alike
was required with the large influx of European settlers after 1833. While it was a
possible alternative for the wholesale importation of the criminal law in England,
with certain modifications where necessary, it was noted by the English Criminal
Law Commissioners that the English criminal law (in the 19th century) was so
defective that it can be reformed only by being entirely taken to pieces and
reconstructed.
It is interesting to note that while Lord Macaulay initially considered the inclusion
of the defence of necessity, he did not include it in his Draft Indian Penal Code
1837, but decided to leave the matter of necessity to the discretion of executive
clemency. The defence of necessity was only subsequently added when the Indian
Penal Code was enacted in 1860.
In his notes on the Draft Indian Penal Code 1837, Lord Macaulay recognised the
benefits of having the defence of necessity:
As the penal code itself appeals solely to the fears of men, it never can furnish
them with motives for braving dangers greater than the dangers with which it
threatens them. Its utmost severity will be inefficacious for the purpose of
preventing the mass of mankind from yielding to a certain amount of temptation.
However, Lord Macaulay went on to say that:

There are, as we have said, cases in which it would be useless cruelty to punish
acts done under the fear of death, or even of evils less than death. But it appears to
us impossible precisely to define these cases. We have, therefore, left them to the
Government, which, in exercise of its clemency, will doubtless be guided in a great
measure by the advice of the Courts.
It can be observed from Lord Macaulays notes on the Draft Indian Penal Code
1837 that the issue of whether the adoption of a restrictive or flexible approach
towards the defence of necessity would better serve the morality of the law has
consistently plagued the criminal jurisprudence. However, it is submitted that the
adoption of an overly restrictive approach towards the defence of necessity may
disengage public morality from the law.

THE UTILITY OF THE DEFENCE OF NECESSITY:

This is unlike the western jurisdictions where the defence of necessity gained
recognition over the years and has been applied in novel ways. It is submitted that
the defence of necessity is capable of having greater utility within the criminal law.
The defence of necessity serves to justify or excuse a person for his acts when he
is guilty by the strict letters of the law but morally innocent due to the extenuating
circumstances. In particular, this Part of the paper will first examine cases where
the defence of necessity have often been relied upon but failed, namely for the
killing of an innocent person in circumstances of emergency. This will be followed
by another two categories of cases where the defence of necessity has been
successfully pleaded, namely medical cases and regulatory offences. This
discussion seeks to examine the scope of the defence of necessity by a contrast
between the categories of cases where the defence has been successfully pleaded
and where the defence has been refused.
By and large, these cases serve to test the limits of the defence of necessity, and
indeed, the ethical boundaries of the criminal law. In doing so, they assist in the
criminal law's role of norm-setting and norm modification.
As the discussion below will show, the defence of necessity does serve a practical
function by allowing a person to be either justified or excused for his acts when he
is guilty by the strict letters of the law but morally innocent. Accordingly,
Singapore should not adopt a restrictive approach towards the defence of necessity,
which may unfairly prejudice against accused persons who may be morally
innocent, albeit having violated the law.

TYPES OF NECESSITY:

i)Private necessity:
Private necessity is the use of another's property for private reasons. Well
established doctrines in common law prevent a property owner from using force
against an individual in a situation where the privilege of necessity would apply.
While an individual may have a private necessity to use the land or property of
another, that individual must compensate the owner for any damages caused. For
example:
A strong wind blows a parachuting skydiver off course from his intended landing
zone. He must land in a nearby farmer's field. The skydiver tramples on the
farmer's prized roses, and the farmer hits the skydiver on the head with a pitchfork.
The skydiver can invoke the privilege of private necessity for trespassing in the
farmer's fields but will have to pay for the damage caused to the roses. The farmer
will be liable for battery because the use of force in defense of property is not
privileged against an individual who successfully claims private necessity.
In American law, the case most often cited to explain the privilege of private
necessity is Vincent v. Lake Erie Transp. Co., 1

CASES RELATED TO PRIVATE NECCESITY

Vincent v. Lake Erie Transportation Co.

Facts
Defendant Lake Erie was at the dock of plaintiff Vincent to unload cargo from
Reynolds, the steamship owned by the defendant. An unusually violent storm
developed. Lake Erie was unable to leave the dock safely and deckhands for the
steamship instead tied the Reynolds to the dock, continually changing ropes as
1

109 Minn. 456, 124 N.W. 221 (1910).

they began to wear and break. A sudden fierce wind threw the ship against the
dock significantly damaging the dock.

Issue
Is compensation required when there is damage to another's property due to a
private necessity?

Decision
(Judge O'Brien) Yes. A private necessity may require one to take or damage
another's property, but compensation is required. If the Reynolds had entered the
harbor at the time the storm began, and the wind knocked her against the dock, this
force of nature would not have allowed Vincent to recover. The defendant, Lake
Erie, deliberately kept the Reynolds tied to the dock. If they had not done so, the
ship could have been lost creating a far greater damage than what was caused to
the dock. Although this was a prudent thing to do, Lake Erie is still liable to
Vincent for the damage caused.
To invoke the private necessity privilege, the defendant must have been actually
threatened or have reasonably thought that a significant harm were about to occur.
The ruling in Vincent v. Lake Erie assures private citizens from a public policy
stand point that they will be compensated for their loss. Vincent will be
compensated for repairs and Lake Erie can rest assured that their ship will not sink

Public necessity is the use of private property by a public official for a public
reason. The potential harm to society necessitates the destruction or use of private
property for the greater good. The injured, private individual does not always
recover for the damage caused by the necessity. In American law, two conflicting
cases illustrate this point: Surocco v. Geary, 2and Wegner v. Milwaukee Mutual
Ins. Co.3

2 3 Cal. 69 (1853)

ii)Public necessity: Public necessity is the use of private property by a

public official for a public reason. The potential harm to society necessitates the
destruction or use of private property for the greater good. The injured, private
individual does not always recover for the damage caused by the necessity.

CASES RELATED TO PUBLIC NECCESITY

Surocco v. Geary
Facts
San Francisco was hit by a major fire. The plaintiff, Surocco, was attempting to
remove goods from his home while the fire raged nearby. The defendant and
mayor of San Francisco, Geary, authorized that the plaintiff's home be demolished
to stop the progress of the fire and to prevent its spread to nearby buildings.
Surocco sued the mayor claiming he could have recovered more of his possessions
had his house not been blown up.

Issue
Is a person liable for the private property of another if destroying that property
would prevent an imminent public disaster?

Decision
No. The right of necessity falls under natural law and exists independent of society
and government. Individual rights must give way to the higher law of impending
necessity. A house on fire or about to catch on fire is a public nuisance which is
lawful to abate. Otherwise one stubborn person could destroy an entire city.
If property is destroyed without an apparent necessity, the destroying person
would be liable to the property owner for trespass. Here, blowing up Surocco's
3

479 N.W.2d 38 (Minn 1991).

house was necessary to stop the fire. Any delay in blowing up the house to allow
him to remove more of his possessions would have made blowing up the house too
late.
The decision in Surocco v. Geary differs from the private necessity doctrine that a
trespasser must compensate a property owner for any damage she may cause. The
next case coincides with the private necessity doctrine and shows that American
courts are conflicted on the issue of compensation for damage.

Wegner v. Milwaukee Mutual Ins. Co.

Facts
A suspected felon barricaded himself inside of plaintiff, Wegner's house. The
Minneapolis police department fired tear gas canisters and concussion grenades
into the house causing extensive damage. Wegner sued the defendant, the City of
Minneapolis for trespass. Wegner claimed that the City's actions constituted a
"taking" of his property under principles similar to those outlined in the Fifth
Amendment to the US Constitution: this was a taking of his private property for
public use and so the City was required to compensate him for it. The City claimed
there was no taking because the police's actions were a legitimate exercise of
police power. Lower courts ruled that the City was justified under the doctrine of
public necessity and that the City was not required to compensate Wegner. Wegner
appealed to the State Supreme Court in its claim against the City's insurance
company.

Issue
Must a city compensate a homeowner whose property was damaged in the
apprehension by police of a suspect?

Decision
(Judge Tomijanovich) Yes. Under Minnesota's constitution, the government must
compensate a landowner for any damage it causes when it takes private land for

public use. Whether the police acted reasonably is not relevant. The constitutional
provision is not limited to an improvement of property for public use. The doctrine
of public necessity does not change our holding. Once a taking has been found to
exist, compensation is required. If the public necessity doctrine were to apply to a
situation like this, no taking would ever be found. Fairness and justice require this
result. It would not be fair for Wegner to suffer the burden of his loss for the public
good. Therefore, the City must bear his loss. In addition, the individual police
officers are not personally liable; the public must bear the loss.
It is an issue of public policy to determine if either private individuals or the public
at large through taxes should bear the loss for damages caused through public
necessity. Wegner v. Milwaukee allocates the loss that benefits the public to the
public rather than to Wegner, the innocent citizen. Cases with similar facts to
Wegner have used the public necessity doctrine under Surocco, and the individual
must bear the cost of the greater public good. Courts determine this issue as a
matter of public policy.

CONCLUSION :
In conclusion, while the defence of necessity was introduced via the introduction
of the codified system of criminal law as one of the means of effective colonial
administration, there are reasons for the retention of the defence of necessity.

In giving greater emphasis to the defence of necessity and staying true to the
principle that only the morally blameworthy ought to be condemned and punished,
the legal system would be able to filter out the cases where, owing to the
extenuating circumstances and avoidance of the greater harm, the violation of the
letter of the law would not be considered as unlawful.
To hold true to the fundamental precepts of criminal liability, the
law must remain faithful to the principle that only the morally
blameworthy should be condemned and punished. In curtailing
the defence of necessity, the judiciary and legislature are in fact
rendering the legal system morally irrelevant.

BIBLIOGRAPHY

1) Ratan Lal and Dhiraj LalsThe Law of Torts by Justice G.P.Singh

2) Winfield and Jolowichs Law of Tort
3) Law of Tort by Salmond and Heuston
4) Law of Torts by Rama Swami Aiyyar, Lexis Nexis Publications
5) www.citmedialaw.org