Revill v Newbery

A trespasser engaged in crime is not an outlaw. The doctrine of ex turpi causa does not provide a complete defence where unreasonable or excessive force is used against an intruder.

Reasonable force may be used to defend a person or property, but excessive force is actionable. A person who fires a gun towards a place where an intruder may foreseeably be present must exercise such care as is reasonable in all the circumstances. The intruder’s criminal conduct and responsibility for the resulting injury remain relevant to contributory negligence and may justify a substantial reduction in damages.

The defendant, aged 76, slept in a shed to protect property from repeated theft and vandalism. When the plaintiff and another man attempted to break into the shed at night, the defendant fired a shotgun horizontally through a hole in the door. He did not intend to hit anyone, but the shot seriously injured the plaintiff.

Rougier J awarded the plaintiff £4,033 for personal injury after finding him two-thirds contributorily negligent. The judge rejected defences including ex turpi causa, accident and self-defence, and awarded the defendant £400 on his counterclaim.

The defendant appealed. The principal questions were whether a burglar could recover for negligent injury, whether illegality provided a complete defence, and what duty governed the firing of the shot.

1. Appeal dismissed unanimously. The judge was entitled to find that the defendant had used more force than lawful self-defence permitted and had acted negligently. The substantial finding of contributory negligence against the plaintiff was justified.

2. Per Neill LJ, the defendant knew or had reasonable grounds to believe that the intruder might come into the vicinity of the danger created by discharging the gun. The gun was fired more or less horizontally through a body-height hole while the defendant could not see whether anyone was in its path. Although he did not intend to hit the plaintiff, a person in his position could reasonably have anticipated that an intruder might move from the shuttered window to the door.

3. The relevant common-law standard was analogous to that stated in sections 1(3) and 1(4) of the Occupier's Liability Act 1984. The duty was to take such care as was reasonable in all the circumstances to prevent the intruder from suffering injury from the danger concerned. Neill LJ considered that the statutory duty itself was imposed upon an occupier in that capacity and did not govern the defendant’s personal act of firing the gun. Evans LJ regarded that statutory issue as unnecessary to decide and expressed no concluded view upon it.

4. The plaintiff’s criminal conduct did not make him an outlaw. Parliament’s provision for duties towards persons other than visitors confirmed that criminal trespass did not eliminate every right to protection. There was therefore no separate second stage at which ex turpi causa extinguished liability after breach of duty had been established.

5. Evans LJ held that the plaintiff’s fault and responsibility were properly addressed under section 1 of the Law Reform (Contributory Negligence) Act 1945. Millett LJ added that reasonable force may be used in defence of person or property, but no more. Excessive violence is actionable, and applying ex turpi causa in this context would bar recovery however unreasonable the force used.

The appeal was dismissed with costs. Leave to appeal to the House of Lords was refused.

1. Court of Appeal: The defendant’s appeal was dismissed with costs. Leave to appeal to the House of Lords was refused.

2. High Court, Queen’s Bench Division: Rougier J awarded the plaintiff £4,033 for personal injury after reducing his recovery for two-thirds contributory negligence. The defendant received £400 on his counterclaim.