Revill v Newbery (1996): defence of illegality

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Areas of applicable law: Tort law – Duty of care – defence of illegality

Main arguments in this case: An occupier owes a duty of care to even trespassers

The fact of the case: On 12 March 1998 around 2am two men aged 21 and 14 attempted to break into the property, a brick shed in his allotment, of the defendant. The claimant were aware of the belongings that the defendant kept in his shed and were of the value to them. The defendant was an elderly man of the age of 76. His property had been attempted many a times in the past for the purpose of burglary and in order to protect the property the defendant kept an air rifle and a shotgun on the premise and slept in the property. When the defendant was awakened by the noise of the breaking into the shed, he shot one of the claimants through a small hole at a short distance. The claimant was hit in the right arm and through it the bullet lodged into his chest.

The claimant brought an action against the defendant on the basis of assault, negligence and  a breach of duty under 1 the Occupier’s Liability Act 1984.

The defendant defended his action on the grounds of self-defence, ex turpi causa – defence of illegality (the claimant was injured while performing a criminal act). The defendant also counterclaimed for the distress and shock he had suffered.

The court overruled the defendant’s argument and held that he had a duty of care to the claimant as he could not have been treated as an outlaw as per the Occupiers’ Liability Act 1984 and owed the claimant a duty of care. However the court also held that the claimant was contributorily responsible for his injury and his compensation was reduced by two third due to his involvement in the criminal act under the Law Reform (Contributory Negligence) Act 1945.

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