Trespasser can claim damages for injuries

LAW REPORT 10 November 1995

Revill v Newbery; Court of Appeal (Lord Justice Neill, Lord Justice Evans and Lord Justice Millett); 2 November 1995

A trespasser engaged in criminal activities is owed a duty of care by a person defending his property and can claim compensation for injuries suffered from the use of force which exceeded reasonable limits.

The Court of Appeal dismissed an appeal by the defendant, William Newbery, from Mr Justice Rougier's award of pounds 4,033 for damages for personal injuries to the plaintiff, Mark Revill.

The defendant, aged 76, who slept in a brick shed on his allotment, heard the plaintiff and another man trying to break in at 2am. The defendant loaded his shotgun, poked the barrel through a small hole in the door, fired and hit the plaintiff at a range of about five feet on the upper arm, through the armpit and into the chest. The plaintiff pleaded guilty to various offences committed that night. The defendant was prosecuted on charges of wounding but was acquitted.

The plaintiff claimed damages against the defendant for breach of the duty under section 1 of the Occupier's Liability Act 1984 and in negligence.

The judge rejected the defences of ex turpi causa non oritur actio (no cause of action may be founded on an immoral or illegal act), accident and self-defence but, on contributory negligence, found the plaintiff two-thirds to blame.

Brian Escott Cox QC and David Farrell (Turner Kenneth Brown for Walter Scott & Ross, Ilkeston) for the defendant; Peter Weitzman QC and Jeremy Lea (Miles & Cash, Eastwood) for the plaintiff.

Lord Justice Neill said that section 1 was concerned with the safety of premises and with dangers due to things done or omitted to be done on the premises. In considering whether the defendant was liable, the fact that he was the occupier was irrelevant. It was necessary to consider his possible liability in the same way as one would have examined the liability of a third person, if that third person had fired the shot.

The provisions of section 1 were helpful in defining the scope of the duty owed at common law to an intruder who came on premises in the middle of the night. On the facts of the case the question of liability at common law was to be determined on the same lines as if one were considering a breach of duty under section 1.

It was clear that, by enacting section 1, Parliament had decided that an occupier could not treat a burglar as an outlaw and had defined the scope of the duty owed to him. A person other than an occupier owed a similar duty to an intruder such as the plaintiff. The liability of the defendant was to be determined by applying a test similar to that set out in section 1(4). There was no room for a two-stage determination whereby the court considered first whether there had been a breach of duty and then considered whether, notwithstanding a breach, the plaintiff was barred from recovering by reason that he was engaged in crime.

The relevant question for examining liability at common law was that posed by section 1(3)(b): whether the defendant had reasonable grounds to believe that the plaintiff was in the vicinity of danger. There might well be cases where in order to frighten a burglar away a gun was discharged in the air and the burglar was injured because unexpectedly he was on the roof. That, however, was not this case.

The judge was entitled to treat the discharge of the gun not merely as a warning shot but as a shot likely to strike anyone in the vicinity of the door. The defendant did not intend to hit the plaintiff, but, on the facts, the judge was entitled to find that the plaintiff was a person to whom the defendant owed some duty and that the defendant was in breach of that duty. The finding of substantial contributory negligence was justified.

Lord Justice Evans, concurring, said that the finding of negligence was entirely justified and implied that the defendant used violence towards the plaintiff which exceeded the reasonable limits permitted by lawful self-defence. It was clear that the trespasser/criminal was not an outlaw and was not debarred from recovering damages.

Lord Justice Millett, also concurring, said that there was no room for the doctrine ex turpi causa non oritur actio. If it applied, any claim by a trespasser would be barred no mattter how excessive or unreasonable the force used against him.

Ying Hui Tan, Barrister