Lane v Holloway

A participant in a fight does not necessarily consent to every injury which the other participant may inflict. Consent does not extend to a savage blow which is out of all proportion to the occasion.

Compensatory damages for physical injury must reflect the injury actually sustained. Provocation or other bad conduct by the claimant cannot reduce that compensation, although it may remove any entitlement to aggravated or exemplary damages. Rude or provocative behaviour does not, without more, constitute contributory negligence or statutory fault in relation to a deliberate and disproportionate assault.

A 64-year-old man insulted the wife of a 23-year-old café proprietor and appeared to challenge the proprietor to fight. The proprietor approached him menacingly. After the older man struck the proprietor lightly on the shoulder, the proprietor delivered a severe punch to his eye, causing major injuries and requiring hospital treatment and operations.

The county court held the proprietor liable but reduced damages substantially because the claimant had insulted the proprietor’s wife, issued the challenge and struck first. It awarded £75.

The appeal concerned whether illegality, consent or contributory negligence defeated or reduced the claim, and whether provocation could reduce compensatory damages for the physical injury.

1. Appeal allowed unanimously; cross-appeal dismissed. The damages were increased from £75 to £300. Judgment was entered for the plaintiff in that amount.

2. Lord Denning MR held that even if an encounter began as an unlawful fight, a participant could recover where the other inflicted an injury with a weapon or by a savage blow out of all proportion to the occasion. A participant in an ordinary fist fight might accept the risk of incidental injury, but did not accept the risk of such a disproportionate blow. The defendant remained liable unless accident or self-defence was established.

3. Lord Salmon rejected both illegality and consent on the facts. The plaintiff was not participating jointly in a criminal venture and had not voluntarily accepted the risk of this severe injury. The defendant had approached the substantially older and infirm plaintiff in a threatening manner and responded to a slight punch on the shoulder with a savage blow to the eye. Lord Justice Winn agreed and emphasised that not every fight was necessarily illegal. The character of the encounter and the scope of any consent depended on its circumstances and degree.

4. Lord Denning MR and Lord Salmon held that provocation could remove any element of aggravated or exemplary damages, but could not reduce compensation for the physical injury actually caused. The claimant’s rudeness, challenge, first blow and unreliable evidence did not justify diminishing that compensation. The court applied Fontin v Katapodis, 108 Commonwealth Law Reports 177, and Lord Justice Winn expressly accepted that decision as correct and authoritative guidance.

5. Lord Salmon further held that the claimant’s conduct did not amount to contributory negligence. Lord Justice Winn agreed that it did not constitute “fault” within section 1 (1) of the Law Reform (Contributory Negligence) Act, 1945.

1. Court of Appeal: Allowed the appeal unanimously, increased the plaintiff’s damages from £75 to £300, and dismissed the cross-appeal. The plaintiff received the costs of the appeal and three-quarters of his costs below.

2. Dorchester County Court: His Honour Judge Pennant found the defendant liable for the assault but reduced compensatory damages because of the plaintiff’s conduct, awarding £75.