Lane v Holloway
Court of Appeal
Citations:  1 QB 379;  3 WLR 1003;  3 All ER 129; (1967) 111 SJ 655;  CLY 1047.
The defendants and the claimant were neighbours with a history of poor relations. One night, the claimant was walking outside his property. The defendant’s wife began shouting abuse at him from the upstairs window of the defendant’s home. The claimant shouted back ‘Shut up, you monkey-faced tart’. The defendant asked the claimant what he had called his wife, and the claimant challenged him to a fight.
The defendant, who was dressed in his pyjamas, came out of his house and approached the claimant. The claimant, thinking that the defendant was about to hit him, punched the defendant in the shoulder. The defendant responded by punching the claimant in the eye, causing serious injuries.
The claimant sued the defendant in battery. The defendant claimed that the claimant had provoked him and relied on the illegality defence and volenti non fit injuria. He also claimed that if the claimant did succeed, his damages should be reduced for contributory negligence.
- Is the defence of illegality applicable to this scenario?
- Is the defence of volenti non fit injuria applicable to this scenario?
- Was the claimant’s provocation relevant when calculating the claimant’s damages, generally or for the purposes of contributory negligence?
The Court of Appeal held in favour of the claimant. The defendant’s blow was out of proportion to the claimant’s provocation, so neither defence applied. The provocation did not change the fact that the claimant had been injured. Therefore, it was irrelevant when calculating damages.
This Case is Authority For…
Participants in a voluntary fight consent to the risk of incidental injuries. As such, volenti non fit injuria applies if the claimant suffers incidental injuries. However, the claimant does not consent to injuries which are out of proportion to what they have provoked. The defence does not apply in that scenario.
The mere fact that the claimant has behaved ‘badly’ is insufficient to make his injuries partly his fault for the purposes of contributory negligence. Provocation has no relevance when calculating ordinary damages.
Lord Denning approved of dicta from Australian cases holding that provocation is relevant to where the court is asked to grant aggravated or exemplary damages. Salmon LJ agreed.
The judges approached the defence of illegality differently. Lord Denning held that the principles applicable to volenti non fit injuria applied equally to the defence of illegality. Salmon LJ held that the defence was irrelevant: while the fight was unlawful it was not a ‘joint criminal venture’.