(D) DETERMINING WHETHER THE CLAIMANT ACTED IN CIRCUMSTANCES OF NECESSITY
Although necessity is defined subjectively, in the sense that we are concerned with whether the claimant had no real choice but to assist the defendant, this is a matter which is particularly difficult to prove. Consequently, the courts often refer to an objective test, namely whether a reasonable person would have acted in the same way had that person been in the same situation as the claimant.2 A number of principles can be identified which will assist in the determination of whether the claimant’s intervention really was reasonable.  Whilst many of these principles have been recognized as relevant in those cases where necessity has been examined in the context of restitutionary claims, it is not necessary to establish all of them before restitutionary relief will be awarded. Rather, they should be treated as characteristics of what constitutes reasonable conduct on the part of the claimant so that he or she can be considered to have acted in circumstances of necessity. Consideration of these principles will also assist the court in determining whether the claimant had acted voluntarily.
(1) The claimant’s intervention will invariably be reasonable where the circumstances were such that intervention was urgently required to protect life, health, or property. Generally this means that there must have been an emergency which required immediate action, otherwise the person or property would be lost or at least suffer serious injury or damage. Whether there was an emergency is to be determined at the time when the emergency becomes apparent. But it is possible in exceptional cases for the claimant’s intervention to be justified by reason of necessity even though an immediate response may not be required. This will be the case where there is no immediate danger, ‘but there was a possible contingency that serious consequences might have ensued’, such as where the defendant is in a permanent or semi-permanent condition whereby he or she is unable to consent to necessary, but not urgent, medical treatment. It is for this reason that the underlying principle for the purposes of restitution is necessity rather than emergency. As Lord Goff has said:
the relevance of an emergency is that it may give rise to a necessity to act in the interests of the assisted person without first obtaining his consent. Emergency is, however, not the criterion or even a prerequisite; it is simply a frequent origin of the necessity which impels intervention.
- (2) A key factor in the identification of circumstances of necessity is that it was impracticable, but not necessarily impossible, for the claimant to communicate with the defendant and obtain the defendant’s consent or instructions before intervening. Where it is possible for the claimant to communicate with the defendant, the claimant can still be considered to have acted in circumstances of necessity if he or she asked the defendant for instructions and none were forthcoming. If the claimant could have communicated with the defendant before intervening but failed to do so, the claimant is likely to be considered to have acted voluntarily.
- (3) The claimant should be an appropriate person to intervene, otherwise his or her action will appear to be voluntary. Whether the claimant was an appropriate person to intervene will depend upon the particular facts of the case, but the claimant is more likely to have been such a person if there was a pre-existing relationship between the claimant and the defendant, such as where the claimant was a friend or relative of the defendant, or the claimant possessed particular skills which were relevant to the intervention. If the claimant was aware that there was a more appropriate person who was ready and willing to intervene, this strongly suggests that the restitutionary claim should fail.
- (4) Even though it was reasonable for the claimant to have intervened, it should also be shown that the claimant’s actions were reasonable since they were in the defendant’s best interests.30 Relevant factors which should be considered when determining whether the claimant’s conduct was reasonable, include the potential consequences if the claimant had not intervened and the cost of the intervention relative to the benefit to the defendant.
- (5) Restitution for reasons of necessity should be denied in all cases where the claimant was aware that the defendant did not wish him or her to intervene. In particular, where the defendant has asked the claimant not to provide the benefit, restitution should be denied, since this suggests that the claimant was acting voluntarily.
- (6) Restitution should be denied where the claimant intended to act gratuitously, because, if the claimant never expected to be remunerated for the benefit provided, he or she should be considered to have acted as a volunteer. Consequently, it is highly significant to the determination of whether a restitutionary remedy should be awarded that the claimant always intended to charge the defendant for the benefit which the defendant had received.32 Where the claimant has provided services in a professional capacity, the intention to charge the defendant for the services should be presumed.
(7) Restitution should be denied if the predominant reason for the claimant’s intervention is to protect his or her own personal interests, for this means that the claimant was a volunteer. Similarly, restitution should be denied where the claimant’s misconduct contributed to the emergency arising in the first place. So, for example, if the claimant intentionally created the risk of harm, so that he or she could intervene and then claim remuneration from the defendant, the claim should fail on the ground that the claimant had been acting voluntarily.
-  See The Australasian Steam Navigation Co v Morse (1872) LR 4 PC 222, 230 (Sir Montague Smith) andRe F (Mental Patient: Sterilisation)  2 AC 1, 75 (Lord Goff).
-  See FD Rose, ‘Restitution for the Rescuer’ (1989) 9 OJLS 167, especially 182-199 and G Jones, Restitutionin Public and Private Law (London: Sweet and Maxwell, 1991), 128.
-  Rose, ‘Restitution for the Rescuer’, 182.
-  The Winson  AC 939, 965 (Lord Simon of Glaisdale).
-  The Ella Constance (1864) 33 LJ Adm 189, 193 (Dr Lushington). Jones, in Restitution in Public andPrivate Law, 145, suggests that, where the claimant intervenes to preserve the defendant’s property ‘thecontingency of serious consequences should be probable rather than possible’, whereas if the claimantintervenes to preserve life or health, it should be sufficient that there was a possible risk of serious consequences, ibid, 159. Jones justifies this distinction on the ground that life is more precious than property.
-  See Re F (Mental Patient:Sterilisation)  2 AC 1 where the court allowed a sexually-active mentalpatient to be sterilized on the ground that this was necessary for her own well-being.
-  Ibid, 75. 27 Ibid. 28 The Winson  AC 939, 961 (Lord Diplock).
-  29 Re F (Mental Patient: Sterilisation)  2 AC 1, 76 (Lord Goff). 30 Ibid, 75 (Lord Goff).
-  31 Ibid, 76 (Lord Goff).
-  32 See Re Rhodes (1890) 44 Ch D 94; Aster Healthcare Ltd v Shefi  EWCA Civ 1350.
-  Falcke v Scottish Imperial Insurance Co (1886) 34 Ch D 234. 3 See p 80, above.