Lane v Holloway [1967] 3 WLR 1003 Court of Appeal

The Claimant, a retired gardener, was injured by Defendant in a fight. The Defendant, aged 23, owned a cafe close to where the Claimant lived. The cafe was frequented by youths late at night. The Claimant objected to the behaviour of the youths and the relations between the two neighbours were strained. One night the Claimant shouted abuse at the Defendant's wife from outside their house. The Defendant, who was in bed at the time got up and went outside in his night gown. The Claimant, thinking he was about to be hit, punched the Defendant. The Defendant then struck the Claimant in the eye. As a result of the punch the Claimant received 18 stitches and required surgery. The Claimant brought an action for damages. The trial judge found the Defendant liable but reduced the damages on the grounds that the Defendant had been provoked into the action and therefore awarded the Claimant £75 rather than £300. The Claimant appealed on the reduction of damages and the Defendant appealed contending that ex turpi causa precluded recovery.

Held:

The Claimant's appeal was successful. There was no grounds for reducing damages for provocative conduct. The Defendant's cross appeal was unsuccessful. The Defendant's actions were out of all proportion to those of the Claimant.

Lord Denning MR:

The first question is: Was there an assault by Mr. Holloway for which damages are recoverable in a civil court? I am quite clearly of opinion that there was. It has been argued before us that no action lies because this was an unlawful fight: that both of them were concerned in illegality; and therefore there can be no cause of action in respect of it. Ex turpi causa oritur non actio. To that I entirely demur. Even if the fight started by being unlawful, I think that one of them can sue the other for damages for a subsequent injury if it was inflicted by a weapon or savage blow out of all proportion to the occasion. I agree that in an ordinary fight with fists there is no cause of action to either of them for any injury suffered. The reason is that each of the participants in a fight voluntarily takes upon himself the risk of incidental injuries to himself. Volenti non fit injuria. But he does not take on himself the risk of a savage blow out of all proportion to the occasion. The man who strikes a blow of such severity is liable in damages unless he can prove accident or self-defence.

Salmon LJ:

It must have been a savage blow, that the plaintiff must have smashed his fist with great force into the eye of this man 40 years older than he was, after coming up to him in a threatening manner and having received no more than a slight punch on the shoulder. To say in circumstances such as those that ex turpi causa non oritur actio is a defence seems to me to be quite absurd. Academically of course one can see the argument, but one must look at it, I think, from a practical point of view. To say that this old gentleman was engaged jointly with the defendant in a criminal venture is a step which, like the learned Judge, I feel wholly unable to take.

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