Date: Fri, 11 May 2007 10:40

From: John Murphy

Subject: The rights of criminals in tort

Dear Maarten,

On the general point about criminals' rights in tort ...

One obvious point is that if A starts a fight with B by hitting B, A is excluded from claiming any compensation from B for the injuries that B inflicts by way of legitimate self-defence. But a fascinating question (to me at least) is whether A should forfeit some of his civil law rights for good: in particular, to the extent that he is trying and able to inflict injury on B. Or are his rights simply suspended until B exceeds the force permitted by the rules on self-defence.

Perhaps an example will help explain my question ...

Suppose A hits B and breaks his nose.

B retaliates by hitting A and, in turn, breaks A's nose. Imagine he goes further, take out his pistol and shoots A in the leg for good measure.

B will clearly have exceeded his right of self-defence as soon as he shoots A. So A can certainly sue B in tort. But should he be able to sue only for the injury to his leg, or for the injury to both his nose and his leg? I think the former is all he should be allowed to claim for. But the English case of Lane v Holloway (which concerned an appeal against a reduction in damages) would suggest that the second approach represents the state of English law. (It’s a bit unclear because one of the three judges felt that the damages could have been higher than those suggested by Lord Denning, yet all three agreed with the Denning sum; and all that they made clear was that they wouldn't reduce the damages for reasons of volenti, contributory negligence or ex turpi causa.)

Is it important? It might be if were a photographic model.

jm

<<<< Previous Message  ~  Index  ~  Next Message >>>>>