 Revill v Newbery

o Newbery’s allotment repeatedly vandalised; Newbery fired shotgun during attempted

burglary; burglar was injured
o Old common law authorities and Law Commission report Liability for Damage or Injury to
Trespassers (Cmnd 6428) acknowledged the existence of some duty towards trespassers;
illegality defence couldn’t apply to N to relieve him of liability
o Burglar was awarded damages, although reduced by 2/3 for contributory negligence
 Vellino v Chief Constable of Greater Manchester
o Police arrived at criminal’s flat to arrest him; he leapt from window in attempt to get away;
he sued police on basis that they had failed to prevent him from harming himself in course
of attempted arrest
o SIR MURRAY STUART-SMITH
 (1) Operation of principle arises where claimant's claim is founded upon his own
criminal or immoral act; facts which give rise to claim must be inextricably linked
with criminal activity; it isn’t sufficient if criminal activity merely gives occasion for
tortious conduct of defendant
 (2) Principle is one of public policy, not for benefit of defendant; thus, defendant's
conduct is irrelevant; there is no question of proportionality between conduct of
claimant and defendant
 (3) Criminal conduct must be sufficiently serious to merit application of principle;
crime punishable with imprisonment generally qualifies; if offence is criminal but
relatively trivial, it is difficult to see how it could be integral to claim
o V's criminal conduct had been sufficiently serious to merit application of principle of ex
turpi causa so illegality defence applied and excluded imposition of duty of care on police
to ensure arrested person was not injured in foreseeable attempt to escape custody
 Gray v Thames Trains
o Lord Hoffman said establishing whether or not illegality defence would apply was matter
of causation and distinguished two types of cases
 Where damage wouldn’t have happened but for criminal act of claimant [as in
Vellino v Chief Constable of the Greater Manchester Police], illegality defence
would apply to relieve defender of liability
 Where although damage wouldn’t have happened without criminal act of claimant,
it was caused by wrongdoing of defender [as in Revill and McLaughlin], illegality
defence wouldn’t apply to relieve defender of liability
 McLaughlin v Morrison
o Pursuer standing at side of road was deliberately run over by defender who was gang
member and believed pursuer was part of gang that had attacked pub belonging to her
associates; so this was reprisal of earlier (illegal) attack
o Lord Jones applied Gray v Thames test in Scottish context: “the first defender took it upon
herself to assault Mr Rennie with a car…the cause of Mr Rennie's injuries was the assault
on him, not any criminal activity on his part…it cannot be said that, although the damage
would not have happened but for the alleged illegal conduct of the first defender, it was
caused by the criminal act of Mr Rennie. (Vellino) The position is, rather, that although the
damage would not have happened without the alleged criminal act of Mr Rennie, it was
caused by the illegal act of the first defender. (Revill)”
o Therefore, illegality defence didn’t apply