Introduction
The Court of Appeal's decision in Revill v Newbery [1996] QB 567 is a significant case in the law of occupiers' liability and negligence, particularly concerning the duty of care owed to a trespasser engaged in a criminal act. The case required the court to balance the rights of an occupier to defend their property against the principle that no individual, not even a criminal, is completely without legal protection from harm.
The facts were straightforward. Mr Newbery, an elderly man, owned an allotment with a shed which had been subject to frequent burglaries. Concerned, he began sleeping in his shed armed with a 12-bore shotgun. Mr Revill, the claimant, accompanied by an accomplice, attempted to break into the shed at 2 a.m. On hearing noises, Mr Newbery fired the shotgun through a small hole in the door, intending to frighten the intruder. The shot struck Mr Revill, causing him significant injuries. Mr Revill brought a claim in negligence against Mr Newbery. At first instance, the judge found in favour of Mr Revill but reduced his damages by two-thirds for contributory negligence. Mr Newbery appealed, arguing that he owed no duty of care to a burglar or, alternatively, that the claim should be defeated entirely by the defence of illegality (ex turpi causa non oritur actio).
The Court of Appeal dismissed the appeal, upholding the trial judge's decision. This commentary will argue that Revill v Newbery correctly affirmed the application of the Occupiers’ Liability Act 1984, demonstrating that the statutory framework for duties owed to trespassers cannot be displaced by the common law defence of illegality. Instead, the court showed a preference for using the flexible doctrine of contributory negligence to achieve a just outcome that reflected the claimant’s own wrongdoing.
The Legal Context: Trespassers and the Defence of Illegality
Prior to the 20th century, the common law offered very little protection to trespassers. The traditional position, as established in Addie & Sons (Collieries) Ltd v Dumbreck (1929), was that an occupier owed no duty to a trespasser to ensure their safety. The only duty was to refrain from inflicting injury intentionally or recklessly. This harsh rule was eventually softened by the House of Lords in British Railways Board v Herrington (1972), which introduced a limited duty of ‘common humanity’ towards trespassers whose presence was known or foreseeable.
Parliament gave statutory force to this development by enacting the Occupiers’ Liability Act 1984 (OLA 1984). This Act now governs the duty that an occupier of premises owes to persons other than their lawful visitors, which primarily means trespassers. Section 1(3) of the Act establishes that an occupier owes a duty if three conditions are met: (a) the occupier is aware of the danger or has reasonable grounds to believe it exists; (b) they know or have reasonable grounds to believe that the other person is in, or may come into, the vicinity of the danger; and (c) the risk is one against which, in all the circumstances, the occupier may reasonably be expected to offer the other some protection. If these conditions are satisfied, the occupier owes a duty under section 1(4) to "take such care as is reasonable in all the circumstances of the case to see that [the non-visitor] does not suffer injury on the premises by reason of the danger concerned."
Alongside this statutory framework is the common law defence of ex turpi causa non oritur actio, which translates to ‘from a dishonourable cause an action does not arise’. This public policy defence prevents a claimant from succeeding in a claim where their cause of action is founded upon their own illegal or immoral act. A key case illustrating this principle is Pitts v Hunt (1991), where a claim brought by a passenger who had encouraged his friend to drive a motorbike recklessly while drunk was defeated by the illegality defence. The central question for the court in Revill v Newbery was how this common law defence interacted with the specific statutory duty laid down in the OLA 1984.
The Judgments of the Court of Appeal
The Court of Appeal was unanimous in dismissing Mr Newbery's appeal. Each of the three judges provided reasoning that reinforced the trial judge's decision but approached the issue of illegality from slightly different perspectives.
Neill LJ, giving the lead judgment, established that the OLA 1984 applied to the situation. He reasoned that the Act provides a comprehensive code for the duty owed to trespassers, and it would be contrary to Parliament's intention to allow this statutory duty to be defeated by a broad application of the ex turpi causa defence. As he noted, the OLA 1984 is "an Act which was passed to define the duty of an occupier to those who are on his land without his permission" (Revill v Newbery, 1996, p. 571). To allow a complete defence simply because the claimant was a trespasser would undermine the very purpose of the Act. Neill LJ concluded that the claimant’s conduct was best addressed not by denying a duty of care entirely, but by assessing the standard of care required and considering contributory negligence. He found that firing a shotgun through a door without being able to see what was on the other side was a clear breach of the duty of care, and that a two-thirds reduction in damages for contributory negligence was an appropriate reflection of Mr Revill's culpability.
Millett LJ delivered a more detailed analysis of the ex turpi causa defence. He expressed dissatisfaction with the vague 'public conscience' test that had been used in some earlier cases to determine the defence's application. Instead, he drew a crucial distinction based on causation. He argued that the defence applies where the claimant's injury is a direct consequence of their own illegal act, such that the claim is inextricably linked to the crime. This was the situation in Pitts v Hunt, where the injuries arose directly from the joint criminal enterprise of reckless driving. By contrast, in Mr Revill's case, the cause of his injury was not the burglary itself, but the separate and subsequent tortious act of Mr Newbery firing the gun. As Millett LJ explained, "It is one thing to deny a duty of care to a burglar in respect of the unsafe state of the premises… It is another to deny a burglar a right of action if the occupier chooses to shoot him" (Revill v Newbery, 1996, p. 573). The injury was caused by a negligent act of violence, not by a static danger on the land. He therefore agreed that the defence of illegality was not available and that contributory negligence was the correct tool to use.
Evans LJ concurred with both judgments. He framed the issue as a straightforward application of the law of negligence, where the fact that the claimant was a trespasser was just one of the circumstances to be considered. He emphasised that while the law permits an occupier to use reasonable force in self-defence, the force used by Mr Newbery was manifestly excessive and unreasonable. The violent nature of the defendant’s act was central to his reasoning. He agreed that the trial judge’s apportionment of liability under the Law Reform (Contributory Negligence) Act 1945 was appropriate and should not be disturbed.
Commentary and Significance
The decision in Revill v Newbery is important for several reasons. Firstly, it provides clear authority that the OLA 1984 cannot be circumvented by the ex turpi causa defence in cases where a trespasser is injured by the active negligence of the occupier. The court correctly identified that the Act itself presupposes the claimant is a trespasser, and therefore the fact of the trespass alone cannot be a reason to deny a claim that falls within the Act's provisions. This ensures that the statutory regime remains the primary determinant of liability.
Secondly, the case demonstrates a pragmatic and just balancing of competing interests. On one hand, it upholds the principle that property owners are not entitled to use excessive or disproportionate force against intruders. It sends a clear message that individuals engaged in criminal activity are not 'outlaws' who are stripped of all legal rights (Cooke, 2015). On the other hand, the court did not ignore the claimant's significant wrongdoing. By upholding a two-thirds reduction in damages for contributory negligence, the court acknowledged the serious nature of the burglary and ensured that the claimant did not profit fully from a situation created by his own crime. This use of contributory negligence provided a more nuanced and flexible outcome than the all-or-nothing approach of the ex turpi causa defence.
Thirdly, the reasoning of Millett LJ was influential in the subsequent development of the illegality defence. His focus on the causal connection between the illegal act and the loss, rather than a vague test of public conscience, pre-empted the approach later adopted by the House of Lords in Gray v Thames Trains Ltd (2009) and the Supreme Court in its comprehensive restatement of the defence in Patel v Mirza (2016). Although the law on illegality has since been refined, Revill remains a key illustration of the principle that the defence should be applied narrowly and not where the injury is caused by an independent act of the defendant.
While some may feel a sense of public outrage that a burglar could successfully sue a householder, the decision is grounded in sound legal principles. The law has long recognised that the use of force in self-defence or the defence of property must be reasonable and proportionate to the threat. Firing a shotgun blindly through a door was found to be an unreasonable and excessive response. The decision therefore reinforces the civilising function of the law, which seeks to regulate conduct and prevent individuals from taking the law into their own hands in a disproportionate manner.
Conclusion
In conclusion, Revill v Newbery is a landmark decision in tort law that clarifies the relationship between the statutory duty of care owed to trespassers and the common law defence of illegality. The Court of Appeal rightly concluded that the OLA 1984 provides the governing framework and cannot be displaced by the ex turpi causa defence when the trespasser is injured by the occupier's positive act of negligence. The case stands as a powerful example of the court’s preference for the doctrine of contributory negligence as a flexible tool for achieving a just result, reflecting the culpability of both parties. It balances the need to protect occupiers with the fundamental principle that all individuals, whatever their conduct, are owed a basic standard of care against violent or reckless harm.
References
Addie & Sons (Collieries) Ltd v Dumbreck [1929] AC 358.
British Railways Board v Herrington [1972] AC 877.
Cooke, J. (2015) Law of Tort. 12th edn. Oxford: Oxford University Press.
Gray v Thames Trains Ltd [2009] UKHL 33.
Law Reform (Contributory Negligence) Act 1945.
Occupiers’ Liability Act 1984.
Patel v Mirza [2016] UKSC 42.
Pitts v Hunt [1991] 1 QB 24.
Revill v Newbery [1996] QB 567.
