Revill v Newberry
| Jurisdiction | England & Wales |
| Judge | Lord Justice Evans |
| Judgment Date | 02 November 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J1102-5 |
| Docket Number | QBENF 94/1685/C |
| Court | Court of Appeal (Civil Division) |
| Date | 02 November 1995 |
[1995] EWCA Civ J1102-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr. Justice Rougier)
Before: Lord Justice Neill Lord Justice Evans Lord Justice Millett
QBENF 94/1685/C
MR. B. ESCOTT-COX AND MR. D. FARRELL (Instructed by Messrs. Walker Scott & Ross, 27 St. Mary Street, Ilkeston, Derbyshire, DE7 8BG) appeared on behalf of the Appellant.
MR. P. WEITZMAN Q.C. AND MR. J. LEA (Instructed by Miles & Cash, 36 Market Place, Derby) appeared on behalf of the Respondent.
NEILL L.J.
This is an appeal by Mr. William Newbery from the order of Rougier J. dated 1 December 1994 whereby the respondent, Mr. Mark Revill, was awarded the sum of £4,033 for damages for personal injuries. By the same order Mr. Newbery was awarded £400 on his counterclaim. Mr. Revill was found two thirds to blame for the injuries which he suffered.
The facts of the case are set out with admirable clarity by the judge whose account I can gratefully adopt:
"At about 2 in the morning of Saturday 12 March 1988 the plaintiff, then aged 21, accompanied by a man called Grainger, some 14 years older, who between them had already on that night broken into two car showroom Portakabins, set alight to one of them, stolen keys from the other and by that means two motor cars, attempted to break into a brick shed belonging to the defendant on his allotment which abutted Greenwood Avenue, Ilkeston. They did so because Grainger, whose father had owned the next allotment, was well aware that the defendant kept a good many items in the shed of considerable attraction to a burglar. …..
The defendant, who at that time was 76, had rigged up sleeping quarters in the shed and had, for several years, been in the habit of sleeping there in order to protect his property from the frequent attentions of vandals and thieves in the area. … Besides the various items depicted in the photographs there were also one air rifle together with pellets and a single barrelled 12 bore shotgun with a supply of No. 6 shot cartridges.
Wakened by the noise of the plaintiff and Grainger trying to break open the shed, the defendant took the shotgun, loaded it, poked the barrel through a small hole in the door, also illustrated in the photographs, and fired. The charge caught the plaintiff at a range of approximately five feet on the right upper arm passing clean through it, through the armpit and into his chest."
Mr. Revill was subsequently prosecuted for the various offences which he had committed that night and pleaded guilty. Mr. Newbery also was prosecuted on charges of wounding but he was acquitted.
Mr. Revill then brought the present proceedings. The claim was based on
(a) Assault, that is, trespass to the person.
(b) A breach of the duty owed under section 1 of the Occupier's Liability Act 1984 (the 1984 Act), and
(c) Negligence.
To these claims Mr. Newbery raised the defences of ex turpi causa, accident, self defence, and contributory negligence. In addition Mr. Newbery counterclaimed damages for shock and distress.
The judge rejected the defence of ex turpi causa. Having considered various authorities he came to the conclusion that the defence could only apply "if the injury complained of was so closely interwoven in the illegal or criminal act as to be virtually a part of it or if it was a direct uninterrupted consequence of that illegal act". (J.14D). In rejecting the defence on the facts of this case he said: (J.15D)
"The discharge of a shotgun towards burglars who are not displaying any intention of resorting to violence to the person is, in my judgment, out of all proportion to the threat involved, even making all due allowance for the agony of the moment, and therefore any injury sustained by such discharge cannot be said to be an integral part nor a necessarily direct consequence of the burglary."
It seems clear that the judge also rejected the defences of accident and self-defence. On the question of contributory negligence the judge expressed his conclusion as follows:(J.18C)
"The plaintiff's decision and subsequent actions were taken at leisure and in the full knowledge of their criminality, whereas all due allowance should be made for the natural fears of the defendant, a man in his seventies, suddenly woken in the middle of the night by things going bump, when fears become magnified and cloud reason and judgement. Balancing the competing factors as best I can, I have come to the conclusion that the share of the plaintiff should be twice that of the defendant and that the apportionment should therefore be in the proportion two-thirds to one-third."
In the course of his judgment the judge considered whether the action should be regarded as a claim for trespass to the person or a claim in negligence. He preferred to treat it as a case of negligence. He considered that the allegations of negligence were precisely coterminous with those for a breach of section 1 of the 1984 Act: see J.3D.
I shall have to turn a little later to set out some of the relevant findings of fact made by the judge but first I must consider the principles of law which are to be applied.
The Law.
In this court the claim for damages for trespass to the person was not pursued. It is therefore unnecessary to consider further the statement of Lord Denning MR in Letang v. Cooper [1965] 1 QB 232 that actions for trespass to the person should be confined to cases where the injuries had been intentionally inflicted. In the present case, as the judge pointed out, it was not argued that Mr. Newbery "ever intended to hit anyone with the shot either at any time or on this particular occasion". (J.11E).
I turn therefore to the principles of law which are relevant to the claims based on section 1 of the 1984 Act and on negligence at common law.
The common law has traditionally treated trespassers with severity. This approach was demonstrated in Robert Addie & Sons (Collieries) Ltd v. Dumbreck [1929] AC 358, where a boy aged four was killed by being crushed in the terminal wheel of a haulage system belonging to colliery company. The field in which the wheel was situated was used as a playground, though colliery officials from time to time warned children out of the field. It was held that the boy was a trespasser and that the company owed him no duty to protect him from injury. At 370 Viscount Dunedin approved the following statement of the law by Hamilton L.J.in Latham v. Johnson [1913] 1 KB 398, 411:
"The owner of the property is under a duty not to injure the trespasser wilfully; not to do a wilful act in reckless disregard of ordinary humanity towards to him; but otherwise a man trespasses at his own risk."
Later at 376 Viscount Dunedin added:
"… The only duty the proprietor has towards [the trespasser] is not maliciously to injure him; he may not shoot him; he may not set a spring gun, for that is just to arrange to shoot him without personally firing the shot. Other illustrations of what he may not do might be found, but they all come under the same head —injury either directly malicious or an acting so reckless as to be tantamount to malicious acting."
Hamilton L.J.'s statement of the law was more recently approved by the Privy Council in Commissioners for Railways v.Quinlan [1964] AC 1054, where it was emphasised that the rule that the trespasser must take the land as he finds it applies not only to the static condition of the land but also to the occupier's activities on the land. In relation to such activities the only restriction on the occupier is that he must not wilfully or recklessly conduct them to the harm of the trespasser: see 1075 per Viscount Radcliffe.
In British Railways Board v. Herrington [1972] AC 877 the House of Lords reconsidered the decision in Addis v. Dumbreck (supra). The five Law Lords restated the duty of an occupier to a trespasser in various ways. For the purposes of this judgment it is sufficient to refer to some of the passages in the opinions:
(a) Lord Reid at 899:
"So the question whether an occupier is liable in respect of an accident to a trespasser on his land would depend on whether a conscientious humane man with his knowledge, skill and resources could reasonably have been expected to have done or refrained from doing before the accident something which would have avoided it. If he knew before the accident that there was a substantial probability that trespassers would come I think that most people would regard as culpable failure to give a thought to their safety."
(b) Lord Morris of Borth-y-Gest at 909:
"… An occupier owes no duty to make his land fit for trespassers to trespass in. … [but there is] a duty which, while not amounting to the duty of care which an occupier owes to a visitor, would be a duty to take such steps as common sense or common humanity would dictate."
(c) Lord Pearson at 929:
"It seems to me that the rule in Addie's case has been rendered obsolete by changes in physical and social conditions and has become an incumbrance impeding the proper development of the law."
Earlier Lord Pearson said at 922:
"… [the occupier of premises … does not owe to the trespasser a duty to take such care as in all the circumstances of the case is reasonable to see that the trespasser will be reasonably safe in using the premises for the purposes for which he is trespassing … It does not follow that the occupier never owes any duty to the trespasser. If the presence of the trespasser is known to or reasonably to be...
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