Murphy v Culhane

A participant in a criminal affray who suffers injury from the intended victim’s retaliation may face complete defences based on ex turpi causa or volenti non fit injuria. Whether either defence succeeds depends on the facts, including the nature of the criminal enterprise and the force used.

The injured person’s conduct may also mitigate compensatory damages where it provoked force proportionate to the occasion. Authorities concerning trivial provocation followed by savage and disproportionate violence do not govern such a case. Alternatively, damages under the Fatal Accidents Act may be reduced under the Law Reform (Contributory Negligence) Act 1945 where the death resulted partly from the deceased’s actionable fault and partly from the defendant’s default.

The defendant killed the deceased by striking him with a plank during an alleged criminal affray. He pleaded guilty to manslaughter. The deceased’s widow brought proceedings under the Fatal Accidents Act for herself and her infant daughter.

Although the defendant admitted the unlawful assault and resulting death, he pleaded that the deceased and others had initiated the affray with the joint criminal intention of assaulting him. He relied on ex turpi causa, volenti non fit injuria and the deceased’s contributory fault.

The Master and a High Court judge granted judgment for the widow on admissions, with damages to be assessed, because they considered themselves bound to exclude those defences. The defendant appealed. The central issue was whether the pleaded facts required investigation at trial before liability and damages could be determined.

1. Appeal allowed unanimously. Lord Denning MR, with Orr LJ and Waller J agreeing, held that judgment on admissions could not stand. The pleaded facts required investigation at trial because they were capable of affecting both liability and the amount of damages.

2. The decisions in Fontin v Katapodis and Lane v Holloway concerned trivial conduct by the injured person followed by savage violence wholly disproportionate to the occasion. They should not be applied where the injured person provoked retaliation involving force proportionate to the occasion. Lord Denning MR preferred the principle stated in Gray v Barr: in assessing damages for assault, the court may consider circumstances which mitigate damages as well as those which aggravate them.

3. The defendant was entitled to advance complete defences based on ex turpi causa non oritur actio and volenti non fit injuria. A participant in a gang intending to assault another person may, depending on the facts, have committed conduct sufficiently wrongful to deprive him of a cause of action or have accepted the relevant risk. The defendant’s manslaughter conviction did not justify excluding those pleaded civil defences without a trial.

4. Even if the widow established liability under the Fatal Accidents Act, sections 1(1) and 1(4) of the Law Reform (Contributory Negligence) Act 1945 permitted a reduction where death resulted partly from the deceased’s own fault and partly from the defendant’s default. Under section 4, the relevant fault had to be conduct capable of making the deceased liable in tort. Unlike the conduct considered in Gray v Barr and Lane v Holloway, the pleaded participation in the present affray might satisfy that requirement.

5. The judgment for damages to be assessed was set aside and the action was directed to proceed to trial. Leave to appeal to the House of Lords was refused.

1. Court of Appeal: The defendant’s appeal was allowed unanimously. The judgment on admissions was set aside and the action was directed to proceed to trial.

2. High Court, Queen’s Bench Division: A judge in chambers upheld the grant of judgment for the claimant on admissions, with damages to be assessed.

3. Master: The claimant obtained judgment on admissions, with damages to be assessed, because the pleaded defences were considered unavailable under the existing authorities.