Cross v Kirkby [2000] EWCA Civ 426 (1 8 February 2000)

Hunt saboteur Cross attacked farmer Kirkby with a baseball bat while trespassing. Kirkby wrestled the bat away and struck Cross once, causing serious head injury. The Court of Appeal held Kirkby acted in lawful self-defence and alternatively that Cross's claim was barred by ex turpi causa as his injuries arose from his own criminal conduct.

Facts

The claimant, Harry Cross, was a hunt saboteur who, together with his partner, repeatedly trespassed on the defendant farmer William Kirkby’s land to disrupt a hunt on 7th October 1992. After being removed twice from the land, Cross attacked Kirkby when he attempted to escort Cross’s partner off the property. Cross armed himself with a baseball bat from his car, threatened to kill Kirkby, and struck him multiple times. During a struggle, Kirkby wrested the bat from Cross and struck him once on the side of the head, causing a skull fracture and subdural bleeding resulting in epileptic attacks.

The Trial

At trial, His Honour Judge Inglis found that Cross had been the aggressor throughout, making threats including:

“You’re fucking dead, Kirkby”

The judge found that Kirkby was acting in self-defence but held that the force used was excessive and disproportionate. He awarded Cross 40% of agreed damages (£52,000), finding Cross 60% responsible for his injuries. The judge rejected the defendant’s ex turpi causa defence.

Issues

1. Whether the defendant acted lawfully in self-defence

2. Whether the claimant’s claim was barred by the maxim ex turpi causa non oritur actio (no action arises from a base cause)

Judgment

Self-Defence

Lord Justice Beldam held that the trial judge erred in finding the force excessive. The judge had placed too much emphasis on medical evidence about the force of the blow while overlooking the defendant’s evidence that he acted instinctively without time to aim. As Lord Morris stated in Palmer v R, if a person attacked had:

“only done what he honestly and instinctively thought was necessary, that would be most potent evidence that only reasonable defensive action had been taken”

Lord Justice Judge agreed, stating that Kirkby had done his utmost to avoid confrontation, was under genuine attack with a weapon, and when he responded, he struck only once without using his full force. The defendant could not be expected to measure the violence deployed with mathematical precision.

Ex Turpi Causa

Lord Justice Beldam held that even if the self-defence argument failed, the claim should be barred by ex turpi causa. As Lord Mansfield explained in Holman v Johnson:

“No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.”

The court held that for the principle to apply, the claimant’s claim must be so closely connected or inextricably bound up with his own criminal conduct that the court could not permit recovery without appearing to condone that conduct. Cross had committed multiple serious criminal offences including affray, assault occasioning actual bodily harm, possession of an offensive weapon, and making threats to kill. His injury arose directly from his criminal attacks on the defendant.

Implications

This case clarifies the application of both self-defence and ex turpi causa in tort claims arising from violent altercations. On self-defence, it emphasises that courts should not use “jeweller’s scales to measure reasonable force” and should consider the totality of circumstances facing a defender in the agony of the moment. On ex turpi causa, it establishes that where a claimant’s injuries are inextricably linked with his own serious criminal conduct, the claim will be barred regardless of any disproportionality in the defendant’s response. The case distinguishes between criminality that is merely incidental background to an injury and criminality that forms an integral part of the circumstances giving rise to the claim.

Verdict: Appeal allowed. The Court of Appeal set aside the trial judge's decision, finding that the defendant acted lawfully in self-defence. Alternatively, the claimant's claim was barred by the ex turpi causa principle as his injuries arose from his own criminal conduct.

Source: Cross v Kirkby [2000] EWCA Civ 426 (1 8 February 2000)