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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Revill v Newbery [1995] EWCA Civ 10 (02 November 1995) URL: https://www.bailii.org/ew/cases/EWCA/Civ/1995/10.html Cite as: [1996] QB 567, [1996] 2 WLR 239, [1995] EWCA Civ 10, [1996] 1 All ER 291 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE ROUGIER)
Strand, London WC2 |
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B e f o r e :
LORD JUSTICE EVANS
LORD JUSTICE MILLETT
____________________
MARK REVILL | ||
Plaintiff/Respondent | ||
-v- | ||
WILLIAM TED NEWBERY | ||
Defendant/Appellant |
____________________
Verbatim Reporters, Chancery House, Chancery Lane, London WC2
Telephone No: 0171 404 7464
Official Shorthand Writers to the Court
MR. P. WEITZMAN Q.C. AND MR. J. LEA (Instructed by Miles & Cash, 36 Market Place, Derby) appeared on behalf of the Respondent.
____________________
Crown Copyright ©
NEILL L.J.
"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 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.
"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."
"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."
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).
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 anticipated by the occupier, then the occupier has a duty to the trespasser, but it is a lower and less onerous duty than the one which the occupier owes to a lawful visitor. Very broadly stated, it is a duty to treat the trespasser with ordinary humanity."
(d) Lord Diplock at 941:
"The duty [to the trespasser] does not arise until the occupier has actual knowledge either of the presence of the trespasser upon his land or facts which make it likely that the trespasser will come on to his land; and has also actual knowledge of facts as to the condition of his land or of activities carried out upon it which are likely to cause personal injury to a trespasser who is unaware of the danger. ... Once the occupier has actual knowledge of such facts, his own failure to appreciate the likelihood of the trespasser's presence or the risk to him involved, does not absolve the occupier from his duty to the trespasser if a reasonable man possessed of the actual knowledge of the occupier would recognise that likelihood and that risk.
(1) The rules enacted by this section shall have effect, in place of the rules of common law, to determine-
(a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and
(b) if so, what that duty is."
.........................
(3) An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in sub section (1) above if -
(a) he is aware of the danger or has reasonable grounds to believe that it exists;
(b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and
(c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.
(4) Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned.
(5) Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk.
(6) No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).
.........................
(8) Where a person owes a duty by virtue of this section, he does not, by reason of any breach of the duty, incur any liability in respect of any loss of or damage to property ...
................................."
"It seems clear that the wording is apt to cover conduct on the premises which causes a continuing source of danger, thereby rendering it unsafe. It is less clear whether the words have the effect of bringing within the scope of the 1957 Act all claims for injuries on the occupier's premises arising from every kind of activity or omission on them irrespective of whether they are connected with the safety of those premises as such. The opinion of the majority of commentators is that the words in question do not have this effect; and consequently an activity or omission on the premises not in itself affecting their safety falls outside the scope of the 1957 Act, so that the liability in respect of such an activity or omission (if any) falls to be determined by general principles of negligence at common law. ... We agree with the majority view, and we consider it right in principle that a new provision relating to the occupier's liability to the trespasser could, in this respect, have the same scope as that already applying in relation to the liability towards a visitor... In consequence, any case in which the danger arises from some activity for which the person sought to be made liable is not responsible in his capacity as an occupant of the premises will continue to be treated in accordance with the ordinary principles of negligence at common law. Thus, if a person (whether an occupier or not) while shooting rabbits injures another person (whether a trespasser or not), whether he is liable will depend on the ordinary principles of negligence at common law."
"Such persons [occupiers] are entitled to farm lands, operate quarries and factories, run express trains at full speed through stations, fell trees and fire shots without regard to the mere general possibility that there might happen to be in the vicinity a trespasser who might be injured. Such persons do not have to cease or restrict their activities in view of that possibility, which is too remote to be taken into account and could not fairly be allowed to curtail their freedom of action."
The maxim ex turpi causa non oritur actio can be roughly translated as meaning that no cause of action may be founded upon an immoral or illegal act. The application of the maxim was considered by the Court of Appeal in Pitts v. Hunt [1991] 1 QB 24. In that case the plaintiff was a passenger on a motor bike being driven by the defendant. He was seriously injured when the defendant negligently collided with another vehicle. The defendant was killed and the plaintiff brought an action for damages against the defendant's estate. It is clear that when he set off on the journey the plaintiff knew that the deceased was uninsured and unlicensed. It is also clear that both of them had been drinking alcohol for most of the evening and that the plaintiff had encouraged the deceased to drive in a recklessly dangerous manner.
The Liability of Mr. Newbery.
In his judgment Rougier J. made the following relevant findings of fact:
(1) Mr. Newbery believed, though mistakenly, that there was no one in front of the door.
(2) When he fired the gun Mr. Newbery had no means of knowing for sure whether it was pointing at anyone. Mr. Newbery was effectively blindfold.
(3) When he fired the gun Mr. Newbery's perception and judgment were clouded by fear.
(4) Mr. Newbery was carrying out a preconceived contingency plan.
The present case can also be distinguished from the `criminal enterprise' type of case exemplified by Pitts v. Hunt [1991] 1 QB 24. The issue here is whether the plaintiff in a personal injury claim for damages for negligence is debarred from making any recovery where he was a trespasser and engaged in criminal activities when the injury was suffered. Any broad test of causation is satisfied almost by definition in such a case, because he would not have sustained the injury caused by the defendant unless he had been where he was and acting as he was at the relevant time.
MILLETT L.J.
Order: appeal dismissed with costs; legal aid taxation of the respondent's costs; leave to appeal to the House of Lords refused.
© Crown Copyright