It’s the peak of summer. Your neighbour is fed up of the heat, and packs his bags for the mountains…no, not for sanyas, but for the much pleasant weather of the Nilgiris, with his entire family.

He locks up his house, and seems he’ll be gone for a while. A week has passed, but the stubborn summer heat holds good.

Unfortunately for your neighbour, the same cannot be said for the electrical wiring of his house (he does not pay heed to TV ads, so). It’s big, it’s bright, and is the subject of a lot of excitement outside. You look out of the window with groggy eyes. Your neighbour’s house is on fire. The house is two stories tall, and has been standing for the last 60 years or so. It doesn’t seem very sturdy right now.

It has been over 45 minutes since the fire department has been informed. You decide that pulling the house down would be in the best interests of everyone, so you do that. However, your neighbour doesn’t see it that way. Very selfish of him, but first things first – you have a lawsuit to deal with.

Now, let’s fast forward to something called the defence of necessity. It is exactly what the word suggests – a defence to a tortuous act, which was necessitated by the circumstances.

Such being the case, that you were almost forced into doing something due to the circumstances, don’t you think you should have a defence since your actions were not entirely wilful? Of course you do; and, the law of tort concurs. 1-0, to you. The only money your neighbour might get is from the insurance company.

The defence of necessity recognizes the need to break the law in certain urgent/demanding situations. It involves the balancing of a lesser and a greater evil, where the defendant chooses the lesser evil, which thus gives him a valid defence.

Hereon, we differentiate between the intent and the consequence of the defendant’s actions.

Let’s say he ends up causing a harm which is slightly greater than the harm which would have probably been caused without his intervention, if the defendant’s intention was to cause a lesser harm and he acted in a reasonable way to achieve that, then there is a good possibility that he will escape liability.

This is because in case where one might have to make a quick decision, not all possible consequences are foreseen or within one’s control. However, if the consequence which is foreseen is one causing the lesser harm, the defendant may not be liable.

There are two types of necessity – public and private. Public necessity can be claimed in cases where the defendant acted for the greater good of others; in private necessity, it’s the defendant’s interest wholly which are served by his tortuous act.

The importance of understanding this difference is merely that acts done for public necessity serves as an absolute (complete) defence, while acts done for private necessity only gives a partial defence.

For example, you are walking by your local market and suddenly a swarm of bees attack you, and you knowingly run into the market knowing that there will be too many people and the resulting excitement will cause the bees to move towards others. You had good reason to try and save yourself there; however, you didn’t have a good reason to cause harm to others, who were not in the path of that harm. The burning house example is one of public necessity, and an individual will have a complete defence there.

To have a successful defence, the defendant needs to prove:

1. His/her course of action was in violation of the law, but there were no alternatives to it.
2. (S)he acted to prevent imminent harm.
3. (S)he was forced to choose between two evils (harmful act), of a greater and lesser degree, and chose the lesser one.
4. (S)he chose a reasonable method in order to avoid that greater harm.
5. (S)he had reasonable foresight as to the consequences of his/her actions.

Additionally,

6. The necessity must not arise out of the defendant’s own negligence.
7. The harm caused is not provoked by the claimant. In case the plaintiff intentionally created the circumstances which forced the defendant to commit the tortuous act out of necessity, it is an open-and-shut case of the plaintiff’s wrongdoing.
8. The defendant’s action may not necessarily be for the protection of his own person or property, but of others too.

Note:

1. The defence of Necessity can theoretically extend to the causing of death. That is, as long as the requirements of this defence is proved, and additionally that causing death was the last available avenue, it will be accepted. However, it is only in medical cases that this defence is allowed liberally, for the reasons that otherwise the entire medical profession will absolutely refuse to undertake risky procedures with the looming threat of legal proceedings. In other cases, the burden of proof is set much higher.
2. Just to add some stress, the harm intended to be caused must be lesser than the harm that would’ve been caused without the intervention. This is very important for a successful defence of necessity.

PRACTICE QUESTIONS:

Principle: Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to a person or property.

1. Xander passed away, while he was alone in his room, and lay there, dead. His servants, unaware of this, were drinking and enjoying in the house. X’s sister-in-law removed X’s jewellery from the room to another room for safety. It was later not found in the room where it was shifted to and presumed stolen. Decide the liability of the sister-in-law.

a. No liability since she acted in good interests of X.
b. No liability it was a reasonable assumption that some harm would be caused.
c. Liable since the harm was not immient.
d. None of these.

(c. Her interference was not reasonably necessary, since the harm was not imminent.)

2. ABD lives in an area which is prone to flooding during the monsoons. The people in his area including ABD have taken adequate precautions to avoid flooding. Despite that, there is an unprecedented amount of rainfall, and ABD is forced to put up barricades to stop the water from entering his land. The water, however, enters MSD’s, his neighbour, property and damages it. Do you think ABD can successfully claim the defence of necessity?

a. Yes, since MSD should have put up a barricade too to protect his land from flooding. It was a lapse on his part.
b. Yes, since it was a reasonable act was to prevent imminent damage to his property.
c. No, since his actions caused damage to MSD’s property.
d. No, since MSD’s property was not in the way of harm and was deliberately brought into it.

(b. Although his actions did cause damage to MSD’s property, it was not intended to cause the same. Therefore, it was not deliberate. In any case, he may have to pay some kind of compensation, but the defence will stand because of the given reasons.)

3. Mr. Sharma, the Captain of a steam vessel, suddenly and without any fault or negligence on his part, finds himself in such a position that, before he can stop his vessel, he must inevitably run down a boat B, with twenty or thirty passengers on board, unless he changes the course of his vessel, and that, by changing his course, he must incur the risk of running down a boat C with only two passengers on board and which he may possibly clear.

a. Sharma has committed no offence because this was done out of necessity
b. Sharma can be held responsible for the act of criminal negligence
c. Sharma can be held responsible for culpable homicide
d. This is a clear case of accident so Sharma cannot be held responsible

(a. Simple application of the principle.)

4. Kush takes a plain sheet of paper from Yusuf’s drawer without the latter’s consent, to write a letter to his friend.

a. K has committed an offence in the above context.
b. K has committed no offence in the above context.
c. Y can sue K for an offence in the above context.
d. None of the above.

(d. he has not committed any offence; not because he has the defence of necessity, but because his act is not tortuous in nature.)

5. A fire broke out in Alvin’s house in the middle of the night. He lived in a residential area, but immediately drove his car to his friend Maria’s house, 10 km away, to fetch water from her well. Since it was late, he did not bother waking her up and take permission, but instead made haste and went back to his apartment to put out the fire. Upon finding out about this incident, Maria sued Alvin for trespass. Will she succeed?

a. Yes. Alvin lived in a residential area, and could have collected water from his neighbours than 10 km away.
b. No. Alvin’s intention was to merely put out the fire.
c. No. Alvin did not want to inconvenience her in the middle of the night so he drew water without her permission.
d. No. Friends are to help one another at all times.

(a. For the reasons given, it is quite obvious that his actions were quite unreasonable, just like the rest of the options.)