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Table of Contents

1. Introduction 2
2. Definition 2
3. General Defences 3
1) Volenti non fit injuria 4
2) Plaintiff, the wrongdoer 4
3) Inevitable Accident 4
4) Act of God 4
5) Private Defence 4
6) Mistake 5
7) Statutory Authority 5
8) Necessity 5
4. Factors affecting necessity 6
5. Burden of proof 6
6. Types of necessity 7
1) Public Necessity 7
2) Private Necessity 8
7. Conclusion 9
8. Bibliography 10
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Necessity

Introduction
An act done voluntarily by the plaintiff which is going to cause
injury but with the intention to prevent the greater harm. The
defence of necessity recognizes that there may be situations of such
overwhelming urgency that a person must be allowed to respond by
breaking the law. As in the case of Baender v. Barnett a fire broke
out in a maximum-security prison, and the prisoners, threatened by
death, break out of their cells. Surely, they are not guilty of the crime
of escape? Here’s a situation where most of us would agree that
necessity could be a defence and that the prisoners who broke out of
their cells “out of necessity” ought not to be convicted for escape. 1
Necessity is based on maxim salus populi suprema lex i.e. ‘the
welfare of the people is the supreme law’.

Definition
Necessity as a defense is defined under section 81 in Indian
Penal Code as:
Act likely to cause harm, but done without criminal intent, and
to prevent other harm. - 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 person
or property.
Explanation. - It is question of fact in such a case whether the harm
to be prevented or avoided was of such a nature and so imminent as
to justify or excuse the risk of doing the act with the knowledge that
it was likely to cause harm.

1. Baender v. Barnett, 255 US 224 (1921)

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Illustrations
a) A, 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 to 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 risk of
running down a boat C with only two passengers on board, which he
may possibly clear. Here, if A alters his course without any intention
to run down the boat C and in good faith for the purpose of avoiding
the danger to the passengers in the boat B, he is not guilty of an
offence, though he may run down the boat C by doing an act which
he knew was likely to cause that effect, if it be found as a matter of
fact that the danger which he intended to avoid was such as to
excuse him in incurring the risk of running down the boat C.
b) A, in a great fire, pulls down houses in order to prevent the
conflagration from spreading. He does this with the intention in good
faith of saving human life or property. Here, if it be found that the
harm to be prevented was of such a nature and so imminent as to
excuse A’s act. A is not guilty of the offence.

General Defences
When the plaintiff brings an action against the defendant for a
particular tort, providing the existence of all the essentials of that
tort, the defendant would be liable for the same. The defendant
may, however, even in such a case, avoid his liability by taking the
plea of some defence. There are some specific defences, which are
particular to peculiar wrongs. For example, in an action for
defamation, the defences of privilege, fair comment or justification
are available. There are some general defences which are as follows:
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1) Volenti non fit injuria

When a person consents to the infliction of some harm upon
himself, he has no remedy for that in tort. 2 In case, the plaintiff
voluntarily agrees to suffer some harm, he is not allowed to complain
for that and his consent serves as a good defence against him.
2) Plaintiff, the wrongdoer
Under the law of contract, one of the principles is that no court
will aid a person who found his cause of action upon an immoral or
an illegal act. The maxim is “Ex turpi causa non oritur actio” which
means, from an immoral cause no action arises. It means that if the
basis of the action of the plaintiff is an unlawful contract, he will not,
in general, succeed to his action.
3) Inevitable accident
Accident means an unexpected injury and if the same could not
have been foreseen and avoided, despite reasonable care on the
part of the defendant, it is inevitable accident. According to Pollock,
“it does not mean inevitable, but it means not avoidable by any such
precautions as a reasonable man, doing such an act then and there,
could be expected to take”.
4) Act of God
The rules of strict liability, i.e., the rule in Rylands v. Fletcher,3
also recognizes this to be a valid defence for the purpose of liability
under that rule. Act of god is a kind of inevitable accident with the
difference that in the case of act of god, the resulting loss arises out
of the working of natural forces.
5) Private Defence
The law permits use of reasonable force to protect one’s
person or property. If the defendant uses the force which is

2. Under Criminal Law also, consent is a defence in certain cases. See Ss. 87-92, I.P.C.
Also see R. v. Donovan, (1934) All E.R. Rep 207 : (1934) 2 K.B. 498
3. (1868) L.R. 3 H.L. 330
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necessary for self-defence, he will not be liable for the harm caused
thereby. The use of force is justified only for the purpose of defence.
There should be imminent threat to the person safety or property.
6) Mistake
Mistake, whether of fact or law, is generally no defence to an
action for tort.4 When a person wilfully interferes with the rights of
another person, it is no defence to say that he had honestly believed
that there was some justification existed.
7) Statutory Authority
The damage resulting from an act, which is legislature
authorizes or directs to be done, is not actionable even though it
would otherwise be a tort. When an act is done, under the authority
of an Act, it is complete defence and the injured party has no remedy
except for claiming such compensation as may have been provided
by the statute.
8) Necessity
An act causing damage, if done under necessity to prevent a
greater evil is not actionable even though harm was caused
intentionally. Necessity should be distinguished from private
defence. In necessity, there is an infliction of harm on an innocent
person whereas in private defence, harm is caused to a plaintiff who
himself is the wrong. Necessity is also different from inevitable
accident because in necessity, the harm is an intended one whereas
in inevitable accident, the harm is caused in spite of best effort to
avoid it.
In Leigh v. Gladstone,5 forcible feeding of a hunger striking prisoner
to save her was held to be a good defence to an action of battery.
In Cope v. Sharpe,6 the defendant entered the plaintiff’s land to
prevent the spread of fire to the adjoining land over which the
defendant’s master had the shooting rights. Since the defendant’s

4. Mistake of fact is a defence in criminal law in certain cases, See Ss. 76-79, I.P.C.
5. [1909] 26 T.L.R. 139
6. [1891] 1 K.B. 496
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act was considered to be reasonably necessary to save the game

from real and imminent danger, it was held that the defendant was
not liable for trespass.
In Carter v. Thomas,7 the defendant, who entered the plaintiff’s
premises in good faith to extinguish fire at which the firemen had
already been working, was held liable for trespass.
In Kirk v. Gregory,8 after A’s death, A’s sister-in-law removed some
jewellery from the room where he lay dead to another room,
thinking that to be a safer place. From there, the jewellery was
stolen. In an action by A’s executors against A’s sister-in-law for
trespass to the jewellery, it was held that since the interference was
not reasonably necessary, she was liable.

Factors affecting necessity

1) Affirmative defense
2) A defendant typically invokes the defense
3) Against intentional torts of trespass to chattels, trespass to land or
conversion.
4) With the necessity defense, there will always be a prima facie
violation of the law.
A tort is a civil wrong for which unliquidated damages have to
be compensated by the defendant even if he did in case of necessity.
The defence of necessity is only applicable when the defendant is
able to justify his unlawful acts. It seems to be generally assumed
that, if the defence of necessity succeeds, that is the end of the
matter.

Burden of Proof
To present the defense at trial, defendants must need to meet the
burden of provision of the four elements:
1) They were forced with a choice of evils and choose the lesser evil.
2) They acted to prevent imminent harm

7. [1891] Q.B. 673

8. [1876] 1 Ex. D. 55
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3) They reasonably anticipated a direct casual relationship between

their conduct and the harm to be averted.
4) They had no legal alternatives to violating the law.9
These elements suggest that defense to the liability for
unlawful activity where the conduct cannot be avoided and one is
justified in the particular conduct because it will prevent the
occurrence of a harm that is more serious.

Types of necessity
Historically the principle has been seen to be restricted to two
groups of cases, which have been called cases of public necessity and
cases of private necessity. The act of plaintiff distinguishes the
necessity of defense with other defenses.  But the better view is that
necessity should be used by defendants who rationally chose an
illegal course of action that is the lesser of two evils.
1) Public Necessity
Public necessity pertains to action taken by public authorities or
private individuals to avert a public calamity. The action consists in
destroying or appropriating another’s property. 10 The classic example
of public necessity is the destruction of private property to prevent
the spread of fire11 or disease12 and hence to avert an injury to the
public at large. Public necessity is in operational where the police
trespass on damage. Private property in order to apprehend a
criminal suspect or gain access to the site of an emergency. 13 The
principle behind public necessity is that the law regards the welfare
of the public as superior to the interest of individuals and when there

9. Schoon, 971 F2d at 195, citing United States v. Aguilar, 883 F2d 662, 693 (9 th Cir 1989)
10. BLACK’S LAW DICTIONARY 1059 (8th ed. 2004) (defining Pubic Necessity); See also
Surocco v. Geary, 3 Cal. 69 (cal. 1853)
11. RESTATEMENT (SECOND) OF TORTS Sec 204 (Entry to Arrest for Criminal Offence), RESTATEMENT
(SECOND) OF TORTS Sec 196 (Pubic Necessity)
12. Surocco, 3 Cal. At 71; Conwell v. Emrie, 2 Ind. 35, 35 (1850); Field v City of Des Moines, 39 la. 575,
575 (1874)
13. Seavy v. Preble, 64 Me. 120 (1874)
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is a conflict between the latter must give way. 14 Public necessity

serves as an absolute defense. The first case which was filled with
reference to public necessity was Surocco v Geary.15
With this illustration public necessity is being defined.  “A ship which
had run into difficulties found it necessary to discharge her cargo of
oil, thereby polluting beaches which belong to the plaintiff. Since the
discharge of the oil was necessary to save the crew, and not only the
ship, it was accepted that the defense of necessity applied.
2) Private Necessity
Private necessity arises from self-interest rather than from a
community at large. It takes place when the defendant wants to
protect his own interest. It does not serve as an absolute defense
unlike in the case of public necessity. Private necessity can be
explained with the following example. If defendant entered upon his
neighbor’s land without his consent, in order to prevent the spread
of fire into his own land. The principle applied for private necessity is
“necessitas inducit privilegium quod jura private”, meaning
‘Necessity induces a privilege because of a private right’. This maxim
makes it clear that private defense its more kind of a privilege
enjoyed by many person. The earliest case of private defense was
Vincent v. Lake Erie Transp. Co.

14. United States v Schoon, 971 F.2d 193, 196

15. (1853) (1853), Cal 69, 58 Am Dec 385 (Cal SC)
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Conclusion
It can be concluded that necessity considers morality and provides
one to be saved from his offence. Necessity as a defence is also an
evolving concept, which one can see through the Vincent case and as
well as R v. Dudley and Stephens case, which cleared some essentials
regarding it. There is no doubt that, it has attracted some criticism
and which also do make some sense as it was in obiter dicta in R v.
Dudley and Stephens, where it was said not every necessity can be
ground for necessity otherwise, there will be utter chaos and nothing
else, this inference of the judge seems very true.
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Bibliography:
1. R. K. Bangia, Law of Torts
2. Salmond & Heuston- On the Law of Torts
3. D.D. Basu, The Law of Torts
4. Winfield & Jolowiz on Torts
5. Ratan Lal & Dhiraj Law- The Law of Torts