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 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.
The effect of the decision of the House of Lords in Herrington's case was that it became possible for a plaintiff, even though he was a trespasser, to recover in negligence. But the precise nature of the duty owed to a trespasser gave rise to controversy and in 1984 Parliament intervened.
It is necessary to refer in some detail to the provisions of section 1 of the 1984 Act. Under the heading "Duty of Occupier to persons other than his visitors" section 1 provides:
(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 ...
................................."
I must next consider the nature of the duty owed under section 1 of the 1984 Act in a case such as the present. I shall postpone any consideration of the defence of ex turpi causa until later.
The words in section 1(1)(a) of the 1984 Act "by reason of any danger due to ... things done or omitted to be done on [the premises]" are very similar to the words used in section 1(1) of The Occupiers Liability Act 1957 (the 1957 Act) to regulate the duty owed by an occupier of premises to visitors "in respect of dangers due ... to things done or omitted to be done on [the premises]".
In 1976 the Law Commission published their Report on "Liability for Damage or Injury to Trespassers" (Cmnd. 6428). In paragraph 23 of the Report the words "anything done or omitted to be done [on the premises]" in the 1957 Act were discussed:
"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."
It is also to be noted that in Clerk & Lindsell on Torts (17th Edition) it is stated on page 551 (note 88) that the liability under section 1 of the 1984 Act is "limited to liability as occupier thus excluding the case where an occupier, shooting on his own land, negligently shoots a trespasser. This remains governed by the common law".
This solution may give rise to difficulties. Thus it would seem that if an occupier of land arranges for a party to shoot on his land and one of the party negligently injures a trespasser the occupier might be liable under section 1 of the 1984 Act if the conditions set out in section 1(3) are fulfilled. On the other hand if he goes out shooting alone his liability, if any, would be determined under the common law of negligence. It is also to be observed that in Videan v. British Transport Commission [1963] 2 QB 650 Pearson L.J. at 679, in considering whether any duty was owed by occupiers to a possible trespasser, said, :
"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."
In this passage Pearson L.J. was clearly contemplating that the duty of an occupier in respect of "activities on the land" included activities carried on by him.
I have come to the conclusion, however,that the better view is that the duty imposed by section 1 of the 1984 Act is a duty imposed on an occupier as occupier. Section 1 is concerned with the safety of the premises and with dangers due to things done or omitted to be done on the premises. In considering whether Mr. Newbery is liable on the facts of this case, the fact that he was the occupier is irrelevant. Accordingly, in my view it is necessary to consider the possible liability of Mr. Newbery in the same way as one would have examined the liability of a third person, for example a friend of Mr. Newbery who was staying in the hut, if that third person had fired the shot.
On the other hand the provisions of section 1 of the 1984 Act are very helpful in defining the scope of the duty owed at common law to an intruder who comes on premises in the middle of the night. Indeed, though I have reached my conclusion by a longer route than the judge, I agree with him that on the facts of this case the question of liability at common law is to be determined on the same lines as if one were considering a breach of duty under section 1. Accordingly, in considering whether a duty was owed to Mr. Revill, one can follow the guidance given in section 1(3) of the 1984 Act; and in defining the duty of care one can adopt the formula set out in section 1(4), namely. a duty "to take such care as is reasonable in all the circumstances of the case to see that he [the trespasser] does not suffer injury on the premises by reason of the danger concerned."
I shall consider later the application of the common law duty to the facts of this case. Before I do so, however, I must consider the relevance of the defence of ex turpi causa and also whether Mr. Revill's criminal conduct makes it possible for the court to assess the relevant standard of care.
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 Court of Appeal upheld the dismissal by the judge of the plaintiff's claim. However, the reasons given by the members of the court differed.
Dillon L.J. held that the action failed because it arose directly ex turpi causa: see 60 C. Balcombe L.J. at 50 F adopted the approach of the High Court of Australia in Jackson v. Harrison (1978) 138 CLR 438 that where parties are engaged in a joint criminal enterprise it is impossible for the courts to determine the standard of care which is appropriate in the circumstances. Beldam L.J. at 46 E held that the plaintiff was precluded on grounds of public policy from recovering compensation.
The approach of Beldam L.J. in Pitts v.Hunt can be compared with that of Hutchison J. in Thackwell v. Barclays Bank plc [1986] 1 All ER 676 where the judge formulated a test of public conscience in a case where the plaintiff had been involved in fraud. Hutchison J. said that the court would deny the plaintiff's claim if "in all the circumstances it would be an affront to the public conscience if affording him the relief sought the court is seen to be indirectly assisting or encouraging the plaintiff in his criminal act."
For the purposes of the present judgment I do not find it necessary to consider further the joint criminal enterprise cases or the application of the doctrine of ex turpi causa in other areas of the law of tort. It is sufficient for me to confine my attention to the liability of someone in the position of Mr. Newbery towards an intruding burglar. It seems to me to be clear that, by enacting section 1 of the 1984 Act, Parliament has decided that an occupier cannot treat a burglar as an outlaw and has defined the scope of the duty owed to him. As I have already indicated, a person other than an occupier owes a similar duty to an intruder such as Mr. Revill. In paragraph 32 of their 1976 Report the Law Commission rejected the suggestion that there should be no duty at all owed to a trespasser who was engaged in a serious criminal enterprise.
I am satisfied that the liability of someone in the position of Mr. Newbery is to be determined by applying a test similar to that set out in section 1(4) of the 1984 Act. There is in my view no room for a two-stage determination whereby the court considers first whether there has been a breach of duty and then considers whether notwithstanding a breach the plaintiff is barred from recovering by reason of the fact that he was engaged in crime. It is to be noted that the defence of volenti is dealt with specifically in section 1(6)
I therefore propose to examine the question of Mr. Newbery's liability in the present case by applying principles of law similar to those set out in section 1 of the 1984 Act.
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.
I turn therefore to the question posed by section 1(3)(b) of the 1984 Act. I consider that this question is also relevant when liability at common law is being examined. Did Mr. Newbery know or have reasonable grounds to believe that Mr. Revill was in the vicinity of the danger or that he might come into the vicinity of the danger? The danger was the gun which was about to be discharged.
Each case must depend on its own facts. There may well be cases where in order to frighten a burglar away a gun is discharged in the air and the burglar is injured because unexpectedly he is on the roof. That, however, is not this case. I have carefully considered what weight should be given to the fact that Mr. Newbery thought that the intruder was at the window rather than at the door. I have come to the conclusion, however, that the judge was entitled to treat the discharge of the gun not merely as a warning shot but as a shot which was likely to strike anyone who was in the vicinity of the door. Although the intruder may have been at the window a person in Mr. Newbery's position could reasonably have anticipated that if the window were shuttered, as it was, the intruder might move to the door. The hole through which the gun was discharged was at body height and, as I understand it, the gun was fired more or less horizontally.
It is right to emphasise, as did the judge, that Mr. Newbery certainly did not intend to hit Mr. Revill. Nevertheless I am satisfied that on the facts of this case the judge was entitled to find that Mr. Revill was a person to whom Mr. Newbery owed some duty and that Mr. Newbery was in breach of that duty. The finding of a substantial proportion of contributory negligence was more than justified.
I would dismiss the appeal.
Lord Justice Evans :
The present case is one where, on the judge's findings, the defendant used greater violence than was justified in lawful self-defence and was negligent even by reference to the standard of care to be expected from the reasonable man placed in the situation in which he found himself. The judge also found, applying the usual standards of responsibility and fault which govern the defence of contributory negligence, that the plaintiff himself was two-thirds responsible for the injuries which he sustained. These fortunately were less serious than might have been feared, if not foreseen.
The finding of negligence is challenged by Mr Escott Cox Q.C. in his attractive submissions in support of this appeal. I agree with Neill L.J. for the reasons which he gives that the finding is entirely justified in the circumstances of this case. The finding implies that the defendant used violence towards the plaintiff which exceeded the reasonable limits permitted by lawful self-defence.
His second contention is that the defendant has a complete defence by the application of the rule of law expressed (only) in the latin phrase ex turpi causa non oritur actio. The limits of the rule in cases concerned with the ownership or possession of property, where one party seeks to enforce or take advantage of an illegal transaction, were considered and re-established by the House of Lords in Tinsley v. Milligan [1994] 1 A.C. 348. The dissenting speech of Lord Goff referred to recent authorities, not cases decided by the House of Lords, which have considered whether and how the rule applies where the action is brought in tort rather than in a contractual or property context: see page 361. Such cases give rise to different considerations from those where an illegal transaction is involved.
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.
These are the factors of fault and responsibility which are taken into account when assessing the issue of contributory negligence pursuant to section 1 of the Law Reform (Contributory Negligence) Act 1945. So the question whether there is a complete defence will only have practical relevance in relation to that proportion of the liability which as between the plaintiff and the defendant it is adjudged that the defendant should bear.
This does not mean that the rule cannot apply, because the underlying principle is that there is a public interest which requires that the wrongdoer should not benefit from his crime or other offence. But it would mean, if it does apply in circumstances such as these, that the trespasser who was also a criminal was effectively an outlaw, who was debarred by the law from recovering compensation for any injury which he might sustain. This same consideration also prompts the thought that it is one thing to deny to a plaintiff any fruits from his illegal conduct, but different and more far-reaching to deprive him even of compensation for injury which he suffers and which otherwise he is entitled to recover at law.
It is abundantly clear, in my judgment, that the trespasser/criminal is not an outlaw, and it is noteworthy that even the old common law authorities recognised the existence of some duty towards trespassers, even though the duty was limited and strictly defined and was much less onerous than the common law duty of care. See for example the passages from Addie v. Dumbreck [1979] A.C. 358 which Neill L.J. has quoted. I note also that the Report of the Law Commission discussed the extent of the occupier's duty towards trespassers in the context of "Other possible limitations upon the duty of care" (paragraphs 31-35 at pp. 14-16). It is not suggested that no duty of any sort is owed to the trespasser, and it follows that the law recognises that the plaintiff has some rights, however limited, which the law does recognise and protect.
This is sufficient, in my judgment, to answer the appellant's contention that there is a rule or principle of law which relieves him of all liability or which conversely derives the plaintiff of any right to recover damages in the present case. Such a rule would make it unnecessary to consider the precise scope of the defendant's duty towards the plaintiffs or to apply the rules of contributory negligence. The claim would fail in any event. That clearly is not the law.
It may also be noted that insofar as the rule is said to be based on the concept of causation (ex turpi causa), then it would have had no application in any event under the common law rules before 1945. The plaintiff's claim failed even if negligence was proved where the plaintiff was part-author of his own misfortune, subject to the precise definitions of causation including the "last opportunity rule" which were evolved to overcome the rigours of this doctrine. It would be strange if a rule which was equally effective to debar a trespasser/criminal plaintiff was overlooked in the many authorities where the duty owed towards him was considered.
I further agree with Lord Justice Neill that it is not necessary to decide in the present case whether the statutory duty owed by an occupier under section 1 of the 1984 Act includes activities which he engages in personally on the premises. I therefore express no concluded view on that issue. With that sole reservation, I entirely agree with his judgment.
MILLETT L.J.
For centuries the common law has permitted reasonable force to be used in defence of the person or property. Violence may be returned with necessary violence. But the force used must not exceed the limits of what is reasonable in the circumstances. Changes in society and in social perceptions have meant that what might have been considered reasonable at one time would no longer be so regarded; but the principle remains the same. The assailant or intruder may be met with reasonable force but no more; the use of excessive violence against him is an actionable wrong.
It follows, in my opinion, that there is no place for the doctrine ex turpi causa non oritur actio in this context. If the doctrine applied, any claim by the assailant or trespasser would be barred no matter how excessive or unreasonable the force used against him.
I agree that, for the reasons given by Neill L.J., the Judge was entitled to find that Mr. Newbery's conduct was not reasonable. It was clearly dangerous and bordered on reckless. I would dismiss the appeal.
Order: appeal dismissed with costs; legal aid taxation of the respondent's costs; leave to appeal to the House of Lords refused.
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