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Rex v Bourne

Necessity is recognized as a legal defence except for a few exceptions. Tort law recognizes necessity as a valid defence except for a few exceptions. Under what conditions would you be guilty of trespass and do you have to pay the compensation expected? Fortunately, you can assert the necessity defence and can escape some liability. Necessity defence pertains to emergencies and allows a person to commit a crime to avoid causing further damage.

The necessity defence is derived from the maxim "Salus Populi Suprema Lex," i.e., "the welfare of people is the ultimate law." Section 81 of the Indian Penal Code defines necessity as an act that has the potential to harm but is not meant to do so1. The case of Baender v Barnett illustrates this point.

A fire occurred in a maximum-security prison, and the convicts, threatened by possible death escaped their prison cells, which was a contravention of the law. Should these inmates be allowed to escape2? Yes, the answer is emphatically yes. In this scenario, necessity may be a defence, and the convicts who broke out of their cells should not be held accountable for their actions. The defence of necessity is applicable when a person's life is in jeopardy and they must be allowed to violate the law.

The Law of Torts

In lay terms, a tort is a civil wrong that causes one person to bear loss, harm, or damage, resulting in legal accountability for the tortious act's perpetrator. The word 'tort' has its origins in Latin. The word "tortum," means "something crooked, wrung, or twisted." The concept encloses those civil wrongs which lie independent ofcontracts.3 Tort law refers to claims made in a lawsuit seeking to obtain a private civil remedy, financial compensation.

Individuals who are guilty of injuring others must compensate the plaintiffs under tort law. Reduction of past, future earnings, payment of medical bills, compensation for pain, and additional punitive damages that are aimed at punishing the defendant beyond full recompense are all instances of common remedies.

Tort law is classified in the following ways: torts of Negligence, purposeful torts, and strict liability torts. Torts of Negligence are characterized as harm caused to others because of another's failure to exercise the ordinary standard of care, referred to as a reasonable standard of care. Accidents are one of the most common types of reckless torts.

As opposed to negligence and deliberate torts, strict liability torts do not take the person who caused the injury into account. The objective of strict liability is the conduct itself. Regardless of the degree of care taken or the intentions of the offender, if a person or an entity does a particular act, such as making a faulty product, that individual or entity is liable for damages created by such conduct.

There are a few general defences that may be applied by the defendant may use to avoid tortious liability.
  1. Volenti non-fit injuria
  2. The Act of God (vis major)
  3. Inevitable Accident
  4. Self-Defence
  5. Statutory Authority
  6. Plaintiff- the wrongdoer
  7. Necessity as a defence 4

The Defence of Necessity

General Defences are a collection of defences or "excuses" the defendant may avail of to avoid tortious liability. He can only persuade the court that he is not liable under the circumstance if his actions fit a predefined set of preconditions. When a plaintiff files a lawsuit against a defendant for the commission of a specific tort and establishes all the components, the defendant on the other hand may avoid culpability by utilizing any of the general defences to the tort he has committed. Certain defences are exclusively applicable to certain types oftorts, while others apply to all torts.

The primary rule of necessity is that a person must not interfere unnecessarily with another person's right or property; however, if a person is compelled to interfere with another person's right to protect himself or hisproperty, such interference is acceptable. When a person's life is in danger, the defence of necessity recognizes that they must be permitted to contravene the law

In both civil and criminal law, necessity is a defence that can be used to avoid both civil and criminal damage if an action was "necessary" to avoid larger damage. Nothing constitutes a crime just because it is committed with the "knowledge that it is likely to cause harm or if it is done without any malice and in good faith to avert additional injury to life or property, according to Section 81 of Indian Penal Code. (IPC)"

Example: The defendant was found guilty of driving while his license was suspended, as he went to make aphone call to request help for his pregnant wife. His wife had back and stomach problems, and he did not have access to a phone. He went to his lone neighbour's house first to use the phone, but there was no one there.

Later, he drove a half-mile to the nearest phone to call his mother-in-law for help. Officers pulled him down for a broken taillight on his way home and arrested him for driving while his license was revoked. Recognizing circumstances that are beyond a person's control may sometimes require them to engage in illegal behaviour, theappellate court determined that the defendant plead necessity defence.5

Private Necessity

Trespassing on another's property or interfering with their property to defend oneself or one's property is common private requirement. One has the right to continue trespassing or utilizing someone else's property till the exigency is continuing. Thus, private defence is an incomplete defence available which implies that if he commits trespass and claims the defence of private necessity, he will be accountable for any damage to the plaintiff's property caused by his trespass.

The defendant, however, cannot be responsible for any monetary or punitive damages.
The concept of private necessity is utilized when the following situations apply:
  1. It is self-evident that it is required to prevent severe injury to the person, his property, or his things.
  2. The entry is for the person's gain

Public Necessity

A public need is defined as an action performed by statutory authorities, officers, and private individuals to prevent a disaster that could harm the public. This is applicable when a person commits a trespass to protect the wider society.

Trespassers are not required to reimburse the property owner due to the absolute defence of public need.Government employees, such as firefighters, police officers, and army personnel, frequently claim that their professions are required for the public good. 6

Facts of the Case
Miss H was a fourteen-year-old girl, raped by five officers on May 27, 1939, in what was known as "the case of the horse with the green tail"7. At St. Thomas Hospital, the doctor was unconcerned about her situation, claiming that the child could be a future "Prime Minister of England." Miss H's family wanted to terminate the pregnancy, but were "so respectable that they didn't know the name of an abortionist" 8

Mr. Aleck Bourne was a renowned gynecologist in London who performed the abortion because the rape victim's pain was obvious and the termination of the pregnancy was essential. He was found guilty under the 1861Offenses Against Persons Act. He was charged with being a clandestine abortionist, who had disgraced his profession. Until 1967, many laws were enacted in England to restrict abortion availability, which often resulted in back-alley abortions that resulted in the death of the expecting mother. The Attorney General asked Mr Bourne whether "there was a clear distinction between danger to health and danger to life" 9

There was no change in the legislation per se, but it was held that doctor must have the discretion to take the necessary steps if the life of the patient is in jeopardy, Justice Mcnaughten believed that some legalized abortion was required. Bourne was released and the medical community lauded his actions.

Analysis of the Case
  1. Abortion as a procedure

    Abortion as a procedure was considered "unclean," and religions frequently prohibited abortion, equating itto murder. Despite the widespread condemnation of abortion in civil society, there were plenty of abortionists willing to supply clandestine operations for a fee. Many of these abortions resulted in the death of the woman, due to unsanitary conditions, which were quite common.

    The Ellenborough Act of 1803 is an English statute that prohibits malicious firing and attempts to"discharge loaded firearms," as well as "stabbing, cutting, wounding, poisoning," and the malicious use ofmeasures to cause a woman's miscarriage.

    The punishment for performing or attempting to perform or cause an abortion was life imprisonment.Another name for this act was the Malicious Shooting and Stabbing Act of 1803.

    "The Infanticide and Infant Life (Preservation) Act 1938 convicted women for "child destruction" the following cases:
    1. Any person, who intending to destroy the life of a child capable of being born alone, by any willful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit of child destruction and shall be liable on conviction thereof on information to penal servitude for life.
    2. For the purposes of the act, evidence that a woman had at any material time been pregnant for twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive."

    The Infanticide and Infant Life (Preservation Act) was in existence when this case had taken place.
  2. Mental Condition of the Victim

    When the victim was raped, she was just 14 years old. At that age, the victim lacked the maturity to become a mother. Society would have ostracized her for bringing shame and dishonour to her family. At that time, it was shameful to be an unwed mother, with a child born out of wedlock. Continuing with the pregnancy would have irreversibly damaged her mental health and she may have become a physical or a mental disaster due to the experience. 10No legislation should be so harsh that it harms the very individuals it claims to protect. The law must be both just and adaptable to be used in a variety of scenarios in the future.
  3. Lack of Bodily Agency

    Abortion was often compared to "legalized murder." In the words of Edward Coke:
    "If a woman be quicke with child, and by a potion or otherwise killeth it in her wombe; or if a man beat her, whereby the child dieth in her body, this is a great misprison and no murder; but if the child is born alive, and dieth of the potion, battery or other cause, this is murder."

When it came to their reproductive health, women had little control. The existing laws were enacted to keep women in violent marriages or to protect women whose lives would be jeopardized if the pregnancy went to term. These iniquitous regulations were enforced by the government and women frequently took fraudulent medicines without their families' knowledge. These would be ineffectual, trapping women who had already spent a fortune on them and had no choice but to continue with the unwarranted pregnancy.

The researchers investigated the case and concluded that the judgement was both reasoned and fair even though it did not follow the letter of the law. Despite violating the "Infanticide and Infant Life (Preservation) Act 1938," the court found the surgeon, Dr Alex Bourne not guilty of "abortion" even though he did so intend to "kill the unborn child".

This case was significant because it established that doctors can use their discretion to save the patient's life. Thecourt concluded that the doctor was not guilty, as he performed the abortion to save the victim's life.

  1. M. Anu, 'Necessity as a Defense' (Academike, 13 May 2015) accessed 19 November 2021.
  2. S. Basil, 'Tort' (Encyclopedia Britannica) <> accessed 19 November 2021.
  3. S. Dignath, 'Necessity and Authorities of Necessity as a Defense in Tort', (IPleader, 1 May 2019) <> accessed 19 November 2021.
  4. 'Necessity Defence and Intentional Torts' (FindLaw, 24 March 2017) accessed 19 November 2021.
  5. B. Barbara, Legal History in Medicine, Cambridge Press.
  6. ibid
  7. Davis, 'The Law of Abortion and Necessity' (Online Library).
  8. Durand R.W 'The Modern Law Review' 1937, pp 237.
  1. Anu Mittal, 'Necessity as a Defence' (Academike, 13 May 2015) accessed 19 November 2021
  2. Baender v Barnett [1921] 255 U.S. 224.
  3. Basil S, 'Tort' (Encyclopedia Britannica) <> accessed 19 November2021
  4. Dignath Sehgal, 'Necessity and Authorities of Necessity as a Defence in Tort', (IPleader, 1 May 2019) accessed 19 November 2021.
  5. State v Cole [1991] 403 S.E.2.d 117.
  6. 'Necessity Defence and Intentional Torts' (FindLaw, 24 March 2017) <> accessed 19 November 2021.
  7. Barbara Brookes, Legal History in Medicine, Cambridge Press.
  8. ibid
  9. Davis, 'The Law of Abortion and Necessity' (Online Library).
  10. R.W. Durand, 'The Modern Law Review' 1937, pp 237.
Written By:
  1. Ishika Sharma and
  2. Ishita Ayala

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