Necessity: private and public necessity, and 'necessity knows no law'
LUG-101 Law of Torts including Motor Vehicle Accident and Consumer Protection Act, Unit II: Necessity. · LLB · 60 min
Necessity excuses intentional harm done to prevent a greater harm to the defendant, to others or to the public. This lecture explains private and public necessity, the conditions of the defence (a real and imminent danger not created by the defendant, and reasonable steps), its leading cases (Leigh v. Gladstone, Cope v. Sharpe, Kirk v. Gregory, Carter v. Thomas, Cresswell v. Sirl, Esso Petroleum v. Southport), the limits courts put on the maxim "necessity knows no law", the difference between necessity and private defence, and the criminal parallel in BNS s. 19 (IPC s. 81). It answers the short note of 2019-20 (A5) and the comment of 2022-23 (2(b)).
Objectives
- Define necessity as a defence in tort and distinguish private from public necessity.
- State the conditions of the defence: imminent danger, no fault of the defendant in creating it, reasonable and proportionate action.
- Explain Leigh v. Gladstone, Cope v. Sharpe, Kirk v. Gregory, Carter v. Thomas and Cresswell v. Sirl.
- Comment critically on the maxim 'necessity knows no law' with the limits set by the courts.
- Distinguish necessity from private defence and relate the tort defence to BNS s. 19 (IPC s. 81).
Slides
- What necessity is
- Private and public necessity
- Conditions of the defence
- Leigh v. Gladstone (1909): forcible feeding
- Cope v. Sharpe (1912): fire breaks on another's land
- When interference is not necessary: Kirk v. Gregory (1876) and Carter v. Thomas (1893)
- Protecting property and animals: Cresswell v. Sirl (1948)
- 'Necessity knows no law': a comment
- Necessity in medical emergencies
- Necessity and private defence distinguished
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