Defense Of Necessity Case Study

Introduction:

What is the necessity defense exactly and how and under what circumstances might it work in law of tort? 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 defense and that the prisoners who broke out of their cells "out of necessity" ought not to be convicted for escape . The defense of necessity recognizes that there may be situations of such overwhelming urgency that a person must be allowed to respond by breaking the law. Necessity is based on maxim salus populi suprema lex, i.e. 'the welfare of the people

They were forced with a choice of evils and choose the lesser evil.

2. They acted to prevent imminent harm

3. They reasonably anticipated a direct casual relationship between their conduct and the harm to be averted.

4. And, they had no legal alternatives to violating the law.

These elements suggests 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.

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.

There are basically two types of necessity namely:

1. Public necessity

2. Private necessity

Public

The violation will consist of trespass, conversion or other kinds of infringement of property rights. Under the necessity doctrine, there is a weighing of interests: the act of invasion of another’s property is justified under the necessity doctrine only if done to protect or advance some private or public interest of a value greater than, or at least equal to, that of the interest invaded. A major issue associated with both private and public necessity is whether compensation is owed to the aggrieved party whose property is damaged, appropriated or destroyed.

There is a general sense in the doctrine of necessity that one has the qualified privilege to intentionally trespass onto the land of another in order to prevent serious harm to oneself, to one’s own land, to one’s chattels, or to the person, land, or chattels of another. However, compensation must ordinarily be paid for any harm done in the process.

The following are the clauses when a person trespass other