Tag: law of tort

Necessity: As a Defence in Law of Torts

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This article has been written by Tanya Gupta, a student pursuing BA LLB from Ideal Institute of Management and Technology and School of Law, affiliated to Guru Gobind Singh Indraprastha University, Delhi. This article focuses on the principle of necessity and related case laws.

INTRODUCTION

Is every act done with the knowledge considered as an offence? An act done with the knowledge but without any criminal intention is not considered as an offence. If the person, doing an act in good faith to prevent or avoid greater harm, then it is not said to be an offence. There are various General defences available to the person.

Necessity: As a Defence

  • Necessity in legal context involves the judgement that the evil of obeying the letter of the law is socially greater in the particular circumstances than the evil of breaking it. As a defence law permits the use of reasonable force to protect one person or property but when there is a situation when the person has to choose between to save the life of a person or to save the property of the person then definitely the person chooses to protect the life of a person first. If the person uses the force which is unnecessary to self -defence then the private defence is not available to that person. This exception is based on the maxim ”salus populi suprema lex”, means that the welfare of the people is the supreme law. If a person chooses between the welfare of the community and individual welfare, then he must first choose the welfare of the community. As in order to prevent a greater harm, slight harm is permitted.

Let’s discuss the concept with an illustration, 

The motorman came to know that there was a problem in a train because it became uncontrollable and there were two tracks before him, the first track on which there were two persons standing on a track and on the second track there were so many people standing on it. Then he chooses, the first track to move the train further. He is not guilty of this because the principle of necessity would be applied. As the action of the motorman prevents the greater ham and he chooses first track instead of second.

Necessity: In Indian Penal Code, 1860

As we all know, that necessity is criminal as well as a civil offence. But in reality, it is not an offence it is considered as a defense. In order to prevent greater harmless harm is permitted. Section 81, Indian Penal Code, 1860 discusses the principle of necessity under Chapter IV, General Exceptions.

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 a 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.

  • It embodies the principle that where the accused chooses lesser evil, in order to avert the bigger. The genesis of this principle emanates from two maxims: “quod necessitas non habet legem” (necessity knows no law) and “necessitas vincit legem” (necessity overcome the law).

Let’s discuss this concept with an illustration,

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 is 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 an offence.

In the above illustration, pulling down a house to prevent the fire from spreading, where pulling down a house is an offence per se. But when it is not done with the intention of destroying the neighbour house but only to prevent a greater harm, then the principle of necessity would be applied.

Essentials: Necessity

  1. The damage caused was less than that would have occurred otherwise. 
  2. the person reasonably believed that his actions were necessary to prevent imminent harm. 
  3.  there was no practical alternative available for avoiding the harm.
  4.  the person died not to cause the threat of harm in the first place

Restrictions: Necessity

 There are some limitations of necessity following as:

  1. In the first place, the defence will not succeed if the necessity is arising out of the negligence act of the defendant himself. 
  2.  there must be a real or imminent danger to the person or property.
  3.   Distinction is maintained between the safety of human life and the safety of property for obvious reasons.

Case Laws: Necessity

Carter v. Thomas, 1976

FACTS: fire accident occurred in the premises of plaintiff where the fire workmen reached and tried to extinguish the fire and at the same time defendant also entered into the plaintiff’s premises in order to extinguish the fire by pouring the water by bucket and at last the fire extinguished.

The plaintiff filed a suit against the defendant that he entered into the premises of the plaintiff without his permission and made a contention that he was liable for trespass.

The defendant took the defence of necessity because it was necessary to extinguish the fire.

OBSERVATION AND HELD: Court observed that in the plaintiff’s premises the fire workmen were already reached and extinguish the fire. So, there was no need for the defendant and he was also entered into the plaintiff ’s premises without his permission. Court held the defendant liable for trespass. 

Olga Tellis v. Bombay Municipal Corporation, 1985 SCC 545 

The Apex Court held that ”under the law of torts necessity is a plausible defence, which enables a person to escape liability on the ground that the act complained of is necessary to prevent a greater harm, inter alia, to himself. So, the trespass on some property cannot be justified always on the basis of necessity.

The defence is available if the act complained of was reasonably demanded by the danger or emergency.”

Dhania Daji, (1868) 5 BHC (CrC) 59

FACTS: a person placed poison in his toddy pots, knowing that if taken by a human being it would cause injury, but with the intention of thereby detecting an unknown thief who was in the habit of stealing the toddy from his pots. The toddy was drunk and caused injury to some soldiers who purchased it from an unknown vendor.

 HELD: It was held by the Court that the person was guilty under section 328 of Indian penal code, 1860(causing hurt by means of poison or any, intoxicating or unwholesome drug or other thing with intent to commit an offence) and that section 81 did not apply.

CONCLUSION

This defence is based on the maxim “salus populi suprema lex’’ which means, the welfare of people is the supreme law. By this maxim, injury to some person is possible for the welfare of the majority of the society. For this, there should be the welfare of the maximum person and injury to the minimum person. It is pertinent to note that the principle of necessity does not specifically discuss the ‘greater evil’ or ‘lesser evil’, it in effect deals with the case of ‘lesser evil’.

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STRICT LIABILITY VERSUS ABSOLUTE LIABILITY

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This article has been written by Ritika Sharma, pursuing B.A. LL.B from Vivekananda Institute of Professional Studies, GGSIPU, Delhi. In this article, the concepts of absolute liability and strict liability has been discussed along with the differences of the same.

INTRODUCTION

The law of tort has been originated from the whole concept of English Common law. It has its roots within the same. The law of torts is actually the civil wrong which leads to civil damages.  Since this law is not codified, it becomes important to rely upon the precedents and jurisprudence in order to understand these principles. There have been numerous notions which have been confusing and require a deep and clear understanding. The general rule of tort liability is that the person who causes damage should pay and should compensate. In some cases, the liability is raised on the third parties as well.

However, most of the principles of the law of torts originate from English common law while Indian courts have been successful in modifying the same to meet basic requirements. The two principles of absolute and strict liability are the ones which levy liabilities on the industrial and business aspects when there are commercial activities which actually cause the damages to the public.

STRICT LIABILITY

The rule of a Strict liability provides that if there is any commercial activity which can prove to be harmful; the same should not be carried on. The liability arises even when all necessary and essential precautions are being taken in order to prevent the damage.

The Strict liability is not just a concept but it is actually an imposition of liability on a party without a finding of fault and claimant need only prove that the tort occurred and that the defendant was responsible. The law of torts implies the strict liability rule to such situations wherein the conditions seem to be inherently dangerous.

Under the strict liability rule, the law makes people pay compensation for damages even if they are not at fault. In other words, people have to pay compensation to victims even if they took all the necessary precautions and infect permissions allowing such activities often include this principle as a pre-condition.

In the leading case of Rylands v. Fletcher, the Rule of Strict liability originated. The defendant owned a mill and to improve the supply of the water, he arranged a reservoir over there. The water escaped and damaged the mine of the plaintiff. The court disagreed upon the argument that the defendant was not at fault and explained the rule of strict liability. It said that when somebody keeps something on his property for his benefit, it should not escape and in case it escapes, the owner of that thing must compensate the victim even if he was not negligent.

In the case of the Meghalaya Energy Corporation v. Shri Sukendra Sangma, the court did not recognize the rule of strict and absolute liability in case of this enterprise which was engaged in hazardous and dangerous activity which operate vis-à-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher.

ABSOLUTE LIABILITY

Absolute liability refers to a standard of legal liability which is found in tort and criminal law. In order to convict someone for an ordinary crime, a person should not only have to commit a criminal action but it is required to have a deliberate intention which is mens rea. A company is required not to engage in such activities which can prove to be extremely hazardous. In such cases,  this type of company or any person engaging in such activity have to pay compensation as a mandatory remedy, whether or not such disaster was caused by its negligence.

The Supreme Court, in the M.C. Mehta vs Union of India, found that the principle of strict liability is inadequate in order to protect the rights of citizens and it replaced it with the principle of absolute liability principle. The incident of leakage of Oleum gas from a fertilizer plant of Shriram Food and Fertilisers Ltd. complex at Delhi caused irreparable damage to several people and the due to the prevalence of the concept of absolute liability, there was no defence which was provided to them. Article 21 of the Constitution declares that no person shall be deprived of his life or personal liberty except according to procedure established by law and this specific right is available to both citizens and non-citizens and hence the court wanted corporations to be made fully liable for future undeserved suffering of innocent citizens and held that a hazardous enterprise has an absolute non-delegable duty to the community.

In the case of Union Carbide Company vs. Union of India, which is popularly known as Bhopal Gas leak Tragedy, the Supreme Court held that Union Carbide Corporation, currently owned by Dow Chemical Co, was liable to pay compensation to the victims of the 1984 Bhopal gas tragedy and the curative petition was also denied.

THE DIFFERENCE

The distinction is clear between strict and absolute liability and was clearly mentioned by the Supreme Court in M.C. Mehta v. Union of India, where the court made a summarization as follows:

  • Only those enterprises shall be held liable, in absolute liability, which are involved in hazardous or the activities which are inherently.
  • The very escape of a dangerous thing from the person’s own land is not necessary. Absolute liability is applicable to those injured within the premise and outside the premise and the rule of Absolute liability does not have any exceptions, unlike the rule of Strict Liability.
  • The rule has been elaborated keeping in mind the case of Rylands v. Fletcher as it only applies only to the non-natural use of land, but absolute liability applies even to the natural use of land and if an individual tends to use a dangerous substance and if such substance escapes he shall be liable even though he has taken proper care.
  • The extent of damages actually depends upon the very magnitude and financial capability of the corporation It was also stated by the Supreme Court that the enterprise should be held to be under an “obligation to ensure that the hazardous or inherently dangerous activities in which it is engaged must be conducted with the highest standards of safety and security and if any harm results on account of such negligent activity, the enterprise or the institute must be held absolutely liable to compensate”.

REFERENCES

  • Franklin, Mark, Tort Law and Alternatives: Cases and Materials, University Casebook Series, ISBN-13: 978-1634593007
  • Gilead, Israel, On the Transformation of Economic Analysis of Tort Law, Journal of European Tort Law, Issue 3, 2017; Hebrew University of Jerusalem Legal Research Paper No. 17-26
  • Ryland v. Fletcher, (1868) LR 3 HL 330
  • M.C. Mehta vs Union of India, 1987 SCR (1) 819
  • Union Carbide Company vs. Union of India, (AIR 1987 SC 1086) 
  • P. S. Atchuthen Pillai, The Law of Tort, Eastern Book Co, 8 Ed, 1987 [1]
  • Ratanlal & Dhirajlal, The Law of Torts, Butterworths

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