Necessity as a Defence in Tort Law

The defence of necessity in tort law asserts that a person is not liable for their actions if they commit an act causing damage or injury to prevent greater harm. It recognises that individuals may be compelled to take immediate action to avert a more significant and imminent danger or harm in certain circumstances.

Elements of Defence of Necessity

The defence of necessity requires two key elements to be established:

Act Caused Damage: The person must have committed an act that caused harm or damage to another person’s property or interests. This could involve actions such as trespassing, property damage, or interference with someone’s rights.

Done to Prevent a Greater Harm: The individual must demonstrate that their actions were necessary to prevent more substantial harm or danger from occurring. The harm prevented must be immediate, impending, and of a significant magnitude compared to the harm caused by their actions.

Application in Specific Scenarios

Necessity as a defence can be applied in various situations where the urgency to prevent greater harm outweighs the harm caused by the individual’s actions. Examples of such scenarios include:

Maritime Emergency: 

Imagine a situation where a ship is in imminent danger of sinking due to excess weight. In order to prevent the ship from capsising and risking the lives of all on board, some goods are thrown overboard. 

Although this results in damage to the goods, the action is necessary to save lives and ensure the safety of the vessel. In this case, the defence of necessity may be invoked to protect those responsible from liability.

Emergency Rescues: 

Consider a scenario where a person is trapped in a burning building, and the only way to save their life is by trespassing into a neighbouring property. 

Despite technically violating property rights, the action is justified as it is essential to prevent greater harm—the loss of human life. The defence of necessity can be applied to shield the rescuer from liability.

Balancing the Greater Good

The defence of necessity reflects the principle of balancing the greater good against the harm caused. It acknowledges that sometimes, in urgent and life-threatening situations, individuals must take immediate action to prevent significant harm, even if it involves causing some damage or infringing upon certain legal rights.

However, it’s important to note that the defence of necessity is not an open invitation to act recklessly or without consideration. The harm caused must be proportionate to the harm prevented, and the actions taken should be reasonable under the circumstances.

Summary

The defence of necessity provides legal protection to individuals who commit acts causing harm or damage to prevent greater harm. It recognises that in exceptional situations where immediate action is required to avert significant danger, individuals should not be held liable for their actions. 

However, the defence is subject to the condition that the harm prevented must be greater and that the actions taken must be proportionate and reasonable.