ABSTRACT
A more controversial defence is that of necessity (cf Chapter 7 § 6(d)). That there exists such a defence is not in doubt,113 but the defence is controversial not just because it can on occasions result in delicate social problems – can a hospital administer emergency medical treatment without the consent of the claimant?114 – but also because, when used by public authorities, it raises a problem of public law. If the police have to destroy a person’s private property in order to recapture a dangerous prisoner, is it right that the state should be able to avoid compensating the owner of the private property on the ground of necessity?115 In French law, as we have seen (above § 1(e)), this public law necessity problem is avoided by the equality principle. A citizen ought not to carry the burden of an administrative act carried out in the public interest and for the public benefit; strict liability spreads the loss amongst the community. But in English law, as we have seen, there is no such automatic liability. Indeed, it is quite the opposite.116 Consequently, the injured claimant must prove fault in order to escape the defence of necessity.117
