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

Could the defendant rely on the claimant's initial aggression to justify a disproportionate blow, or to reduce the compensatory damages for the resulting serious injury?

The Court of Appeal allowed the claimant’s appeal and held the defendant responsible for the whole injury caused by the disproportionate blow. The claimant’s initial aggression did not establish consent to that level of violence or justify denying compensation on the grounds advanced. His provocation did not amount to contributory negligence warranting a reduction under the Act. The damages were increased from £75 to £300. The court distinguished criticism of the claimant’s behaviour from the task of compensating the injury actually caused by the defendant’s wrongful response. The result did not make the use of reasonable defensive force unlawful; the excessive retaliation was the problem.

A disproportionate retaliatory blow is not justified merely because the claimant began a confrontation. In Lane, the claimant's initial aggression did not establish consent to serious injury or bar recovery, and provocation did not justify reducing compensation for the injury actually sustained.

Lane separates self-defence, consent and the assessment of damages. A defendant may use reasonable defensive force, but retaliation must be examined against the threat faced. The claimant's participation in an argument is not agreement to any level of violence. The case is also useful for distinguishing compensatory damages from questions about additional aggravated damages. In an examination, identify the particular defence and its elements instead of assuming that the person who struck first necessarily loses.