Lane v Holloway [1967] EWCA Civ 1

An elderly man insulted a younger man's wife and threw a minor punch. The younger man retaliated with a severe punch, causing serious injury. The Court of Appeal held that provocation is not a defence to battery and cannot reduce compensatory damages.

Facts

The plaintiff, Mr Lane, was a 78-year-old man. The defendant, Mr Holloway, was a 23-year-old. After an argument between their wives, the plaintiff insulted the defendant’s wife. Words were exchanged between the two men, and the plaintiff, believing he was about to be struck, punched the defendant on the shoulder. In response, the defendant struck the plaintiff a single, severe blow to the eye. This punch caused a serious wound requiring 16 stitches and hospital treatment. The county court judge found it was a ‘savage’ blow. He treated the incident as a ‘joint affray’ and, on the basis that the plaintiff’s own conduct had contributed to the incident, reduced the damages he would have awarded, giving judgment for just £750.

Issues

The Court of Appeal considered the following legal issues:

1. Nature of the Altercation

Was the incident a ‘joint affray’ or an unlawful assault by the defendant?

2. Defences to Battery

Could the defendant rely on the defences of consent (volenti non fit injuria) or that the plaintiff could not profit from his own wrongdoing (ex turpi causa non oritur actio) because he had participated in the fight?

3. Provocation and Damages

Can provocative conduct by a plaintiff, including verbal abuse and a minor first blow, operate to reduce the amount of compensatory damages awarded for physical injuries sustained in a battery?

Judgment

The Court of Appeal allowed the appeal, finding that the trial judge had erred in law. Lord Denning M.R. delivered the leading judgment, with which Salmon L.J. and Winn L.J. concurred.

Rejection of ‘Joint Affray’ and Defences

Lord Denning rejected the trial judge’s characterisation of the incident as a ‘joint affray’. He distinguished this kind of roadside brawl from a regulated boxing match where participants consent to harm. He stated that the plaintiff’s provocative language and initial minor punch did not justify the defendant’s excessive and violent retaliation.

The plaintiff’s conduct was very bad. It was vulgar abuse. He followed it up with a blow. But these acts, deplorable as they were, did not justify the savage blow which the defendant gave in return. It was out of all proportion to the occasion. I do not think the defendant can get out of it by saying that the plaintiff ‘brought it on his own head’. Nor by pleading volenti non fit injuria… Nor can the defendant rely on the maxim ex turpi causa non oritur actio.

The Role of Provocation in Damages

The central point of law addressed was the effect of provocation on damages. Lord Denning clarified that while provocation may be used to negate or reduce aggravated or exemplary (punitive) damages, it cannot be used to reduce compensatory damages awarded for the actual physical injuries suffered.

Provocation by the plaintiff can be used to wipe out the element of aggravation in the damages for an assault. But it cannot be used to reduce the real damages. The defendant has to pay for the damage he has done. He ought not to have hit so hard if he did.

Salmon L.J. agreed, emphasising that self-defence must be proportionate to the attack faced.

The learned Judge was not entitled to reduce the damages to which the plaintiff was undoubtedly entitled for the very serious physical injuries which he has suffered, merely because he had been provoke into behaving badly and had, to some extent, brought the trouble on himself.

The court held that the trial judge’s figure of £750 was a fair assessment of the plaintiff’s injuries, but he had erred in reducing this amount. Therefore, the full sum of £750 should be awarded without deduction.

Implications

The decision in Lane v Holloway is a key authority in the law of tort on the issue of provocation as a response to battery. It establishes the principle that in civil law, unlike in some areas of criminal law, provocation is not a defence that absolves liability for assault and battery. Furthermore, it sharply limits the financial impact of a plaintiff’s provocation, confirming that it cannot be used to reduce the compensatory damages owed for physical harm. The case reinforces the principle of proportionality in self-defence and clarifies that one cannot consent to an unlawful street fight in the same way as a formal sporting contest.

Verdict: Appeal allowed. The judgment of the county court was varied and judgment was entered for the plaintiff for the full sum of £750.

Source: Lane v Holloway [1967] EWCA Civ 1