• In the case of Lane v Holloway [1968] 1 QB 379, it was established that the defences of ex turpi causa non oritur actio and volenti non fit injuria, do not apply if the injury arising from an out of proportion fight. This case also established that provocation could not amount to fault under s1(1) of the Law Reform (Contributory Negligence) Act 1945.

Facts of Lane v Holloway [1968] 1 QB 379

  • C, aged 64, lived in a quiet court
  • Backing onto this was a café which the D, aged 23, ran
  • C was out enjoying the when the D’s wife hurled abuse at him from her first-story window; he shouted back at her
  • D asked C what he said, C replied he wanted to see him on his own, implying he wanted a fight
  • D came out and a fight ensued with C throwing a punch at D’s shoulder
  • C was severely struck by D in the eye, which caused him to get 19 stitches, an operation, and a month in the hospital
  • C claimed for damages, D raised the defences of ex turpi causa non oritur actio and volenti non fit injuria, and claimed C’s injuries were contributed to by the C himself

Issues in Lane v Holloway [1968] 1 QB 379

  • Did the defences of illegality and voluntary assumption of risk apply to such a fight?
  • Did the C’s provocation amount to contributory negligence under s1(1) of the Law Reform (Contributory Negligence) Act?

Held by the Court of Appeal

Appeal allowed. The defences did not apply; the D was found to be liable in damages for the entirety of C’s injury. C’s provocation did not reduce the damages suffered to him, and it did not amount to contributory negligence under the Act. The damages were increased from £75 to £300.

Lord Denning M.R.  [386 – 8]

Were damages recoverable for the assault on C?

  • Yes. One can sue another if injury “was inflicted by a weapon or savage blow out of all proportion to the occasion”
  • “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.”

Noting that the judge previously had cases considered by the High Court of Australia, Denning L held that court would be the Court of Appeal’s guide in the present case.

As to the provocation:

  • “Provocation by the plaintiff can properly be used to take away any element of aggravation. But not to reduce the real damages.”

Lord Justice Salmon

Unfair to punish the C

  • “I reject the contention that because a plaintiff, who has suffered a civil wrong, has behaved badly this is a matter which a court may take into account when awarding him compensatory damages for physical injuries which he has sustained as the result of the wrong which has been unlawfully inflicted on him” [390]
  • “It is impossible to hold that what the plaintiff did, however rude or silly or cantankerous, amounted to contributory negligence” [393]

Lord Justice Winn

Looking to the Act, “There was nothing in the plaintiff’s conduct which could constitute a “fault” within the definition of “fault” in section 1 (1)” [393]

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