Documentation:Torts/Necessity
Necessity
The doctrine of necessity "applies to emergency situations and allows you to act in a wrongful way because doing so prevents a greater harm to you, your property, or the community".[1] This doctrine is usually invoked by "individuals with recognizable social roles – physicians, firemen and policemen" where the defence is applied to their actions through the lens of the "legal rules that specify the rights and privileges of those roles".[2]
Necessity is a defence to criminal law, but its status as a defence to tort is surprisingly contested. The notion of necessity as a defence is rooted in "moral intuitions about when conduct which causes harm to another's person or property is not wrong, or should be tolerated, permitted or praised".[3]
A defendant may plead necessity in response to a claim against them in trespass to person or property. Even where necessity is recognised as permitting a trespass, however, there remains debate over whether the defendant may still be held accountable for damages. The status of this defence is contentious in part because cases of necessity are rare and varied.
Categories of necessity
The doctrine of necessity may be understood in terms of three categories.
Public necessity
Public necessity is engaged when a defendant acts to prevent an 'imminent public disaster' which will affect many people. When the defendant acts in the best interest of the public good, actions that would otherwise amount to trespass may be permitted.
It is often considered that public necessity is a complete defence to tort liability. If that is the case, then if a plaintiff's home is destroyed in order to create a fire break to protect a town from an oncoming fire, the cost of the loss of home will fall on the plaintiff rather than on the person who pulled down their home or the community whose interests were served by the firebreak. The unfairness of such scenarios has led some to suggest that public necessity should be a complete defence for individuals,[1][4] but only a partial defence for public authorities who should bear the cost on behalf of the community.[5]
Private necessity
Private necessity is engaged when a defendant interferes with the plaintiff to protect themself or their property from imminent disaster.
While public necessity is broadly recognised as a defence to tort, there remains significant uncertainty over whether private necessity is a defence under English and Canadian common law. There are two major competing views. One view holds that private necessity is a partial or incomplete defence that permits the defendant to trespass in emergency circumstances, but that does not permit the defendant to escape liability to compensate the plaintiff for the damage caused. Another view holds that private necessity is not a defence at all, but instead a circumstance that prevents a plaintiff from injuncting the defendant's actions in advance. On this view, a defendant cannot be prevented from trespassing, but since their actions are trepassory the plaintiff can hold them civilly liable in the ordinary way.
Professor Graham Virgo has explored these debates and proposed his own elements for a defence of private necessity:
| Virgo's proposed elements of the defence of private necessity[6] |
|---|
| 1. There must be a real and imminent danger. |
| 2. The circumstances for necessitous intervention must not have been created by defendant's own negligence. |
| 3. The defendant's conduct to avoid the danger must be reasonable. |
| 4. The response must be proportionate such that the harm caused must be less than the harm threatened. |
Necessity in assisting another
| In the news |
|---|
| Climate protestors and the defence of necessity |
| In a 2020 criminal appeal,[7] the British Columbia Court of Appeal ruled against "two Trans Mountain pipeline protesters from raising the 'defence of necessity' in disobeying an injunction." Lawyer Harry Wruck nevertheless considers "there is no question that the defence of necessity is still open to a climate change protester in the right circumstances".[8] |
The defence of necessity in assisting another is "concerned with action taken as a matter of necessity to assist another person without his consent." The doctrine permits interference with someone for their own benefit in an emergency when they cannot help themselves: to protect the life or health of the assisted person, or to preserve their property.[9]
Discussion questions
- Should public and private necessity should be treated differently, or is there a better way to classify necessity?
- Should the courts confirm private necessity as a defence? What might be the implications or consequences?
- ↑ 1.0 1.1 "Necessity Defense and Intentional Torts". FindLaw. 24 March 2017.
- ↑ Bickenbach, Jerome E. (March 1983). "The Defence of Necessity". Canadian Journal of Philosophy. 13: 84 – via JSTOR.
- ↑ Bickenbach, Jerome E. (March 1983). "The Defence of Necessity". Canadian Journal of Philosophy. 13: 79 – via JSTOR.
- ↑ Surocco v. Geary, 3 Cal. 69 (Cal. 1853).
- ↑ Burmah Oil Co Ltd v. Lord Advocate, [1965] AC 75.
- ↑ Virgo, Graham (2015). "Justifying Necessity as a Defence in Tort Law". Defences in Tort. pp. 156–7.
- ↑ Trans Mountain Pipeline ULC v. Mivasair, 2020 BCCA 255.
- ↑ Olijnyk, Zena (29 September 2020). "B.C. court's rejection of necessity defence a blow to fighting climate change, environmentalists say". Canadian Lawyer Magazine.
- ↑ Re: F v West Berkshire HA, [1990] 2 AC 1 (§6.8.3) at page 23.