Defence of Necessity
I recently had the privilege of representing the driver of a motor vehicle that had collided with the fence at the Orange Court House, in turn causing damage to State Government property. The State of New South Wales sought significant costs associated with the repair of the fence based on an allegation of negligent driving. The driver was at the time, being aggressively pursued by another vehicle as it travelled down Byng Street towards the Orange Police Station. Inside the other vehicle were four assailants who had verbally threatened the driver and followed him at high speed to prevent him report them to local Police. During the course of the pursuit a large metal object was thrown from the vehicle, striking the driver, forcing him to lose control of the vehicle and the collision into the Court House fence. Having sustained serious injuries as a result of the incident, insult was added to injury when some three years later the driver was notified of the State’s intent to recover financial damages from him for the necessary repairs to the Court House. It was then that the driver sought advice and assistance from me.
I relied upon the common law defence of “necessity” to defend my client in this claim. The necessity defence operates to absolve liability of a defendant both at criminal and civil law. The principle is that a person should not be liable for actions, that although ordinarily would constitute negligence, when the act occurs in response to a perilous situation.
In Leishman v Thomas the Court stated, “a man is not to be charged with negligence if his not being the creator of the crisis or emergency which has arisen, finds himself forced with a situation which requires immediate action of some sort and if in the so called “agony of the moment” he makes an error of judgment and takes a step which wiser counsels and more careful though would have suggested was unwise”..
The defence has been successfully raised even in situations where the so-called negligent act, deemed necessary by the defendant at the time, is later in the cold light of day and with hindsight reasoning objectively determined not to have been necessary, to wit “the agony of the moment”.
Rather appropriately capturing the circumstances of the driver who crashed into the Orange Court House fence, the Court in Southport Corporation v Esso Petroleum noted “the safety of human lives belongs to a different scale of values from the safety of property. The two are beyond comparisons and the necessity for saving life has at all times been considered a proper ground for inflicting such damage as may be necessary upon another’s property”.
I was able to successfully argue the necessity defence and ultimately force the State to withdraw its claim and make a contribution toward my client’s modest legal costs.