The defendant owned a shed on an allotment and slept there at night in order to protect his property from the attentions of vandals and thieves. Among other items in the shed the defendant, aged 76 at the time, kept a 12-bore shotgun and cartridges. One night the plaintiff and another man attempted to break into the shed intending to steal from it. The resultant noise woke the defendant who, intending only to frighten them, loaded the shotgun and fired it through a hole in the door. The shot injured the plaintiff, who was standing about five feet away from the door. In subsequent criminal proceedings he admitted attempted burglary of the premises. He brought an action for damages for personal injuries against the defendant, alleging that the latter was negligent in firing the shot. The judge at first instance, Rougier J, found that the defendant had been negligent in firing the shot. He made the following relevant findings of fact:'(1) The defendant believed, though mistakenly, that there was no one in front of the door. (2) When he fired the gun the defendant had no means of knowing for sure whether it was pointed at anyone; the defendant was effectively blindfold. (3) When he fired the gun the defendant’s perception and judgment were clouded by fear. (4)The defendant was carrying out a preconceived contingency plan.’ A trespasser (even a thief) is entitled to protection from unnecessary violence, and to an award of damages for personal injuries inflicted. To deny the claimant compensation for an assault which went beyond self-defence was a different thing from denying him the fruits of his crime and was akin to outlawing him. In such a case there was simply no room for the turpitude doctrine.
Held: The Court of Appeal upheld Rougier J’s finding of negligence, confirming his view that the defendant certainly did not intend to hit the plaintiff, but that he was in breach of a duty of care towards him and therefore negligent.
Neill LJ, Evans LJ, Millett LJ
Gazette 06-Dec-1995, Times 03-Nov-1995, Independent 10-Nov-1995, [1995] EWCA Civ 10, [1996] QB 567, [1996] 1 All ER 291, [1996] 2 WLR 239
Bailii
Occupier’s Liability Act 1984
England and Wales
Cited by:
Cited – Vellino v Chief Constable of Greater Manchester Police CA 31-Jul-2001
The police were not under any duty to protect someone who had been arrested from injuring himself in an attempt to escape. The claimant had a history of seeking to avoid capture by jumping from his flat window. On this occasion he injured himself in . .
Cited – Gray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered severe psychiatric injured in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had gone on to kill another person, and he had been detained under section . .
Cited – Ovu v London Underground Ltd (Duty of Care) QBD 13-Oct-2021
Safety of Stairs within Undergrounds Care of duty
The Claimant sued the London Underground company because their relative Mr Ovu died after falling down stairs on a fire escape. It was late at night and he wandered on his own on a cold night, outdoors, onto the stairs. The staircase was in good . .
Lists of cited by and citing cases may be incomplete.
Torts – Other, Personal Injury
Updated: 27 November 2021; Ref: scu.88754
