Date: Sat, 12 May 2007 02:59

From: Neil Foster

Subject: The rights of criminals in tort

Dear All

Perhaps just worth noting the legislative response to this in NSW under the Civil Liability Act 2002.

Part 7 of the Act deals with issues arising where self-defence is pleaded (and it applies, unlike most of the rest of the Act, to intentional torts like battery.) Section 52 parallels the common law (broadly) by allowing a tortfeasor to escape liability where they can show they have acted in self-defence to an unlawful attack and "the conduct [the claimed act of self-defence] is a reasonable response in the circumstances as he or she perceives them". (As a matter of interest, if Ashley v Chief Constable of Sussex Police [2007] 1 WLR 398, [2006] EWCA Civ 1085 represents the common law on the issue, this is more generous to the defendant than the common law, as Ashley holds that there must be objectively reasonable grounds for thinking there is a threat - see eg para [78].)

But in NSW s 53 then kicks in even where the defendant has used more force than was reasonably necessary. In that case, if they were acting in self-defence, they will not be completely exonerated, but before the court can award damages to the attacker it must be satisfied that exceptional circumstances exist. Any damages awarded will also be strictly limited.

So presumably B, in shooting A in the leg, may be able to avoid liability under s 53 unless A can show "exceptional circumstances". No idea, of course, what they might be! As far as I can tell no judicial consideration of s 53 yet.

Regards
Neil F

Neil Foster
Newcastle Law School
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> John Murphy 11/05/07 7:40 >>>

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.

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