Trespasser in entitled to the protection of the law
Revill v Newberry
(1995) The Times, November 3
The Facts
Newberry, aged 76, was asleep in his brick shed on his allotment when he was awoken by the sound of Revill and another person trying to break in. Newberry took his shotgun, loaded it, poked the barrel through a small hole in the door, and fired. The shot hit the Revill at a range of about five feet on the upper arm passing through it, through the armpit and into his chest
Revill was subsequently prosecuted for the various offences which he had committed that night and pleaded guilty. Newberry was also prosecuted on charges of wounding but he was acquitted.
Revill then brought the present proceeding. The claim was based an assault, that is, trespass to the person: breach of duty, owed under section 1 of the Occupier`s Liability Act 1984; and negligence. The claim on assault was not pursued on appeal.
To these claims Newberry raised the defences of (no cause of action might be founded upon an immoral or illegal act), accident, self-defence, and contributory negligence.
THE JUDGMENT
LORD JUSTICE EVANS, said that the case was one where on the judge's findings, Newberry used greater violence than was justified in lawful self-defence and was negligent even by reference to the standard of care to he expected from the reasonable man placed in the situation in which the defendant found himself.
The judge had also found, applying the usual standards of responsibility and fault which govern the defences of contributory negligence that Revill himself was two-thirds responsible for his injuries.
The finding of negligence was challenged by the defence on appeal. His Lordship agreed with Lord Justice Neill that the finding was entirely justified in the circumstances. The finding implied that Newberry used violence towards Revill which exceeded the reasonable limits permitted by lawful self-defence.
His second contention was that Newberry had a complete defence by the application of the rule of law expressed only in the Latin phrase ex turpi causa non oritur actio. The limits of the rule in cases concerned with ownership or possession, where one party sought to enforce or take advantage of an illegal transaction were considered and re-established by the House of Lords in Tinsley v Milligan [1944] I AC 340.
The present case could also be distinguished from the criminal enterprise type of case exemplified by Pitts v Hunt [1991] 1 QB 24.
The issue in the present case was whether Revill in a personal injury claim for damages for negligence was debarred from making any recovery where he was trespasser and engaged in criminal activities when the injury was suffered. Any broad test of causation was satisfied in such a case, because he would nor have sustained the injury caused by the defendant unless he had been where he was and acting as he was at the relevant time.
Those were the factors of fault and responsibility which were taken into account when assessing the issue of contributory negligence. So the question whether there was a complete defence would only have practical relevance to that proportion of the liability which as between Revill and Newberry it was adjudged that Newberry should bear.
That did not mean that the rule could not apply, because the underlying principle was that there was a public interest which required that the wrongdoer should not benefit from his crime or other offence.
But it would mean, if it did apply to circumstances such as the present, that the: trespasser who was also a criminal was effectively an outlaw, who was debarred by the law from recovering compensation for any injury which he might sustain.
It was one thing to deny to a plaintiff any fruits from his illegal conduct, but different and more far reaching to deprive: him even of compensation for injury which he had suffered and which otherwise he was entitled to recover at law.
It was abundantly clear, in his Lordship's judgment, that the trespassing criminal was not an outlaw, and it was noteworthy that even the old common law authorities recognised the existence of some duty towards trespassers.
His Lordship also noted that the report of the Law Commission Liability for Damage or injury to Trespassers (Cmnd 6428) discussed the extent of the occupier's duty towards trespassers in the context of "other possible limitations upon the duty of care". It was not suggested that no duty of any sort was owed to the trespasser and it followed that the Law recognised that Revill had some rights, however limited, which the law did
recognise and protect
That was sufficient, in his Lordship's judgment, to answer Newberry's contention that there was a rule or principle of law which relieved him of all liability or which conversely deprived Revill of any right to recover damages in the present case. Such a rule would make it unnecessary to consider the present scope of Newberry's duty towards Revill or to apply the rules of contributory negligence.
The Decision
A plaintiff in a personal injury claim for damages for negligence was not debarred from recovering damages even if he was a trespasser and engaged in criminal activities when the injury was suffered if the defendant had used greater violence than was justified in self-defence and was negligent even by Reference to the standard of care to be expected from a reasonable man placed in the situation in which the defendant found himself.
The Court of Appeal so held dismissing an appeal by the defendant Newberry, from the judgment of Mr Justice Rougier dated December 1. 1994 whereby he awarded the sum of £4.033 for damages far personal injuries to the plaintiff, Revill. The judge found Revill two-thirds to blame for his injuries
Comment
The Newspapers of 12 December 1995 carried the item that self-defence cases are to be reviewed - Police to take a softer line on charging, "have a go heroes". JPN expressed it aptly as, "trespassers will be perforated", 159 JPN 818.
As long ago as 1604 it was proclaimed that the house, "is to him as his castle and fortress" and, now this includes allotment sheds.
There have been cases recently where people have taken the law into their own hands, e.g.; "Gardener fine £100 for giving vandal six of the best", The Times, July 21 1995 and, "Gun that killed poacher went off accidentally", The times, November 11 1995.
Mr Justice Rougier certainly caused repercussions as a result of the award of £4,000, i.e. Mr J Camplin in a letter to The Times, 13 December 1995, "....the law requires the power of judgment. If Mr Justice Rougier really cannot tell the difference between boys scrumping (Guilty) in a farmer's orchard and an 82-year-old terrorised by vandals and thieves, the he should make way for those who can".
In Murphy v Culhane [1976] 3 All E R 533 The Master of The Rolls said: "I put the case in the course of the argument: suppose that a burglar breaks into a house and the householder, finding him there picks up a gun and shoots him - using more force then is reasonably necessary . The householder may be guilty of manslaughter and liable to be brought before the criminal courts. But I doubt very much whether the burglar's widow could have an action for damages.
The householder might well have a defence, either on the ground of ex turpi causa non oritur [no action arises from a wrongful act] or volenti non fit injuria [one who accepts a risk of injury cannot complain].
The jury that acquitted Barry Richardson in just 10 minutes (fired and hit escaping thief in a area plagued by burglaries) have sent a clear message to the Government and the CPS.