Trespass to a burglar's person: tort defences

• Author: Gilbert Kodilinye
• Position: Reader in Property Law, University of the West Indies
• Pages: 598-611

TRESPASS TO A BURGLAR'S PERSON:

TORT DEFENCES

GILBERT KODILINYE*

In the recent case of Revill

v.

Newbery,1 a burglar claimed damages

from a landowner

who

had shot him as he was attempting to break into an

allotment shed in the middle of the night. Upholding the trial judge's

decision, the English Court of Appeal held that the burglar's claim in

negligence succeeded on the basis that, by enacting section 1 of the

Occupiers Liability Act 1984, the UK. Parliament had decided that an

occupier of premises cannot treat a burglar as an outlaw, and that the duty

owed to a trespasser was as defined by the section, viz., a duty "to take

such care as is reasonable in all the circumstances of the case to see that the

trespasser does not suffer injury on the premises by reason of the danger

concerned."

The approach and reasoning of

the

court is curious, and has already

been the subject of critical academic comment.2 The purpose of this note,

however, is not primarily to discuss the reasoning of the Court of Appeal

but to take the opportunity to examine, in the light of case-law from

various Commonwealth jurisdictions, the applicability of certain tort

defences to assault and battery in circumstances such as those which arose

in Revill - an opportunity which was denied to the Court of Appeal

because the claim based on trespass to the person was abandoned, and the

case proceeded solely on the basis of negligence. The defences which

would seem to be most relevant in this context are self-defence,

provocation, and ex turpi causa non oritur actio.

Self-Defence

Clearly, a householder has a right at common law to protect

himself,

his family and his property from burglars and other intruders, but it is

Reader in Property Law, University of the West Indies.

1 [1996]

1

A11E.R. 291

2 Weir, [1996] C.L J. 182. See also Zanifa McDowell,

p.612,

post.