Cope v Sharpe (No 2): CA 1912

The court considered defences to assault; whether the defendant was justified in doing certain acts of trespass on the plaintiff’s land for the purpose of preventing heath fire and consequent loss and damage to the property of the defendant’s master.
Held: The defendant had made out his plea of justification. The principle was ‘one of general application to justification for acts of trespass. Chasing by dogs which caused a real and present danger of serious harm to the plaintiffs animals chased constitutes an ‘attack’ entitling the owner to take effective action of prevention. The onus of proof is on the defendant to justify the preventive measure of shooting the attacking dogs. He has, by proof, to establish two propositions, but each proposition may be established in either of two ways: Proposition No 1: That at the time of shooting, the dog was either (a) actually (in the above sense) attacking the animals in question, or (b) if left at large would renew the attack so that the animals would be left presently subject to real and imminent danger unless renewal was prevented. Proposition No 2: That either (a) there was in fact no practicable means, other than shooting, of stopping the present attack or preventing such renewal, or (b) that the defendant, having regard to all the circumstances in which he found himself, acted reasonably in regarding the shooting as necessary for the protection of the animals against attack or renewed attack. (As summarised by Scott LJ n Cresswell v Sirl)
Buckley LJ: ‘They (the jury) found that the defendant’s acts were not in fact (i.e., in the result), but were in reason, necessary. I decline to go back upon the evidence. The jury have in my opinion by their findings affirmed the propositions which I have stated.
In this state of facts the question is whether, as matter of law, the defendant has justified that which in the absence of sufficient justification would be a trespass. I notice that Hamilton J. says that in his view the finding of the jury that the method adopted by the defendant was not in fact necessary is conclusive of the case. I do not agree. The test is not whether, if the defendant had not done those acts, the danger would in fact have resulted in injury. Neither is it whether the defendant believed that it would have resulted in injury. The test, I think, is whether, having regard to the rights of the sporting lessee, there was such real and imminent danger to his property as that he was entitled to act and whether his acts were reasonably necessary in the sense of acts which a reasonable man would properly do to meet a real danger.’
Kennedy LJ: ‘With parts of the judgments pronounced in the Divisional Court I agree. I agree in holding that an interference with the property or the person of another, which otherwise would certainly constitute an actionable trespass, cannot be justified by mere proof on the part of the alleged trespasser of his good intention and of his belief in the existence of a danger which he sought by his act of interference to avert, but which in fact did not exist at all.’


Buckley LJ, Vaughan-Williams LJ


[1912] 1 KB 496


England and Wales

Cited by:

ExplainedCresswell v Sirl CA 1948
The defendant shot and killed the plaintiff’s dog. The plaintiff claimed damages for trespass to property, the property being the dog. The defence was that the defendant was justified in killing the dog because it was threatening his sheep.
CitedAshley and Another v Sussex Police CA 27-Jul-2006
The deceased was shot by police officers raiding his flat in 1998. The claimants sought damages for his estate. They had succeeded in claiming damages for false imprisonment, but now appealed dismissal of their claim for damages for assault and . .
CitedAshley and Another v Chief Constable of Sussex Police HL 23-Apr-2008
The claimants sought to bring an action for damages after a family member suspected of dealing drugs, was shot by the police. At the time he was naked. The police officer had been acquitted by a criminal court of murder. The chief constable now . .
Lists of cited by and citing cases may be incomplete.

Torts – Other

Leading Case

Updated: 31 July 2022; Ref: scu.244749