In the face of public opinion

The Appeal Court 3. The Sun readers 45,000.

Their lordships on the bench of the Appeal Court may be unconcerned about being out of kilter with the views of Sun readers. But this was the score after the recent unanimous decision of Lords Justice Neill, Millett and Evans to uphold the £4,000 damages award to a burglar for injuries he received after an 82-year-old man fired a shot gun to scare him off.

In a phone poll, Sun readers called in in their tens of thousands to express their opposition to the original finding.

The case illustrates the gulf of opinion that can at times arise between public thinking and the law.

The case centred on an incident in which burglar Mark Revill found himself on the wrong end of a gun. Revill was in the process of breaking into Ted Newbery's allotment shed, when the Ilkeston pensioner poked a gun barrel through a hole in the door and pulled the trigger. Instead of receiving a warning shot Revill was actually struck by the bullet.

Newbery was cleared of criminal charges but was successfully sued by Revill for compensation. Revill was held as being responsible for a large part of what happened. But despite a two-thirds contributory negligence ruling he still ended up with an award of around £4,000.

In an appeal financially backed by The Sun, Newbery challenged the award. And, although public opinion came down firmly on Newbery's side, evidenced by a phone-in poll run by the newspaper which attracted a record response from readers, the appeal judges went against public opinion and ruled that Revill was entitled to compensation.

"An occupier cannot treat a burglar as an outlaw," said Lord Justice Neill in a ruling which prompted Angela Knight, Tory MP for Newbery's constituency, to brand the law "an ass".

Alastair Ross, senior partner with Ilkeston firm Walter Scott & Ross, acted for Newbery. He said the case served as an important warning to other individuals tempted to 'have-a-go', that they will face the risk of being sued successfully if they attempt to take-on wrong doers and in the course of their actions injure them.

Moves to take the appeal to the House of Lords are still under consideration, but Ross sees the Appeal Court ruling as eliminating application of the old Latin maxim 'ex turpi causa non oritur actio' (a right of action does not arise out of an evil cause) in this type of matter.

While he accepts that Revill was badly injured he firmly believes that Newbery, a client since 1954, should never have been held liable for damages particularly as it was accepted he had never intended to shoot Revill. It is he says "an important case".

"It begs the question as to how far people in Mr Newbery's position, having heard burglars trying both the door and window of their premises, can go in attempting to scare them off," he said.

"He believed the people he was attempting to scare off were at the window of the shed but the judges have said he should have foreseen that someone might step back to the door. This was what they considered rendered him negligent."

However, Ross pointed out that his client was a frightened, elderly man whose property, and he believed his person, were under attack. He said the courts have so far been "very hard on an old man".