ABSTRACT
This article challenges the idea that public necessity must be a complete defence to trespass liability. It identifies and distinguishes three distinct categories of public necessity: two afford justifications for interfering with person or property, whereas the third is better understood as an excuse. The law rightly bars a damages remedy when a defendant has acted to preserve a claimant’s health, life or property, or in order to protect others from a danger emanating from the claimant or their property. But when a defendant deliberately puts a bystander’s body or property in jeopardy or sacrifices them for the public good the common law does and should provide that person recourse. In this latter category of cases, while the claimant may not resist the interference, they must retain a right of action to vindicate their autonomy and dignitary interests and to obtain compensation for losses inflicted on them for society’s benefit.
Samuel Beswick, The Defence of Public Necessity, Modern Law Review. First published: 14 June 2025.
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