Harry Cross v William Dickinson Kirkby

A person acting in self-defence must use force which is reasonable in the circumstances as honestly believed. The law recognises the anguish and urgency of an attack. An honest and instinctive response is potent evidence that the force was reasonable; mathematical precision is not required.

A tort claim is barred by ex turpi causa where it is so closely connected, inextricably bound up or interwoven with the claimant’s criminal conduct that recovery would appear to condone that conduct. Mere wrongdoing or factual causation is insufficient. Proportionality may illuminate the required connection, but it is not an independent balancing test.

The claimant attacked the defendant with a broken baseball bat after repeatedly trespassing on the defendant’s land. The defendant disarmed him and immediately struck one blow with the bat, causing a skull fracture and epilepsy.

A deputy High Court judge rejected self-defence, finding the blow excessive, but attributed 60% responsibility to the claimant and awarded him 40% of agreed damages. The defendant appealed on the ground of ex turpi causa and received permission during the hearing also to challenge the rejection of self-defence.

The central questions were whether the single blow constituted reasonable self-defence and, alternatively, whether the claim was barred because the injury arose from criminal violence directed at the defendant.

1. Appeal allowed unanimously. Beldam LJ, with whom Otton LJ agreed, and Judge LJ each concluded that the defendant acted lawfully in self-defence. The trial judge’s contrary finding was set aside.

2. The defendant’s action had to be assessed in the circumstances as he honestly believed them to be. He had attempted to avoid confrontation, was pursued and repeatedly struck with a hard wooden weapon, and believed that further serious violence was imminent. He disarmed the claimant and immediately delivered one blow, without raising the bat above his head or employing his full force.

3. The trial judge placed excessive weight on medical estimates of the force inferred from the injury. That approach improperly isolated the blow from the attack and measured reasonable defensive force too precisely. The defendant’s honest and instinctive reaction in a moment of anguish was potent evidence of reasonable defensive action. Per Judge LJ, the law does not require the victim of continuing violence to measure the necessary response with mathematical precision.

4. Both reasoned judgments also held, alternatively, that the claim was barred by ex turpi causa. The doctrine is a rule of policy rather than a discretionary public-conscience test. It does not apply merely because the claimant acted unlawfully or because wrongdoing formed part of the factual background. The tortious injury must be closely connected, inextricably bound up or interwoven with the criminal conduct, rather than merely incidental or collateral to it.

5. Proportionality is relevant evidence of that connection, but courts may not simply compare the parties’ respective degrees of illegality. Nor must the claimant necessarily plead, prove or rely upon the illegality. The controlling question is whether the claim arises directly from the claimant’s criminal conduct.

6. Here the claimant’s injury was the immediate culmination of his persistent, armed assault. The defendant used the same weapon with which he had just been attacked, while trying to bring the violence to an end. Even assuming that the response exceeded reasonable self-defence, the injury remained inextricably linked with the claimant’s serious criminal conduct and the court could not countenance the damages claim.

1. Court of Appeal (Civil Division): The defendant’s appeal was allowed unanimously. The finding of liability and damages award were set aside. Permission to appeal to the House of Lords was refused.

2. High Court, Queen’s Bench Division: His Honour Judge Inglis, sitting as a deputy High Court judge, rejected self-defence and ex turpi causa. He found the claimant 60% responsible and awarded 40% of the agreed damages, amounting to £52,000. No citation is stated.