Case Facts
The claimant, aged 64, and the defendant, aged 23, were neighbours in Greenings Court, High East Street, Dorchester. At approximately 11 p.m. on 21 July 1966, the defendant's wife began shouting abuse from her first-floor bedroom window. The claimant replied with the words "Shut up, you monkey-faced tart." The defendant, having heard this exchange, called out to ask what the claimant had said. The claimant responded, "I want to see you on your own" — words which the court treated as amounting to an implied challenge to fight. The defendant came outside wearing his pyjamas and dressing-gown. The claimant then threw a punch at the defendant's shoulder. In retaliation, the defendant punched the claimant very severely in the eye, inflicting a wound so serious that it required 19 stitches, an operation, and a month's stay in hospital.
The claimant brought an action in trespass to the person against the defendant. At first instance, Judge Pennant, sitting in Dorchester County Court on 13 January 1967, awarded the claimant only £75. The trial judge found that the claimant had brought his injury upon himself to a substantial degree by insulting the defendant's wife, by challenging the defendant to fight, and by striking the first blow. On that basis, the trial judge held that those matters must operate to reduce the damages very considerably. The claimant appealed on the ground that the award was wholly inadequate.
Held
The Court of Appeal allowed the appeal and increased the damages from £75 to £300. The court held that the defendant's blow was savage and out of all proportion to the occasion. Three defences advanced by the defendant were considered and rejected: first, the defence of ex turpi causa non oritur actio; secondly, the defence of volenti non fit injuria; and thirdly, a claim for apportionment of damages under s 1(1) Law Reform (Contributory Negligence) Act 1945.
The court further held that the claimant's provocation of the defendant was not a matter capable of reducing the compensatory damages awarded for the physical injury he had actually sustained. The claimant was entitled to recover damages assessed by reference to the full extent of the injury suffered, without any diminution by reason of the circumstances under which it was inflicted.
Ratio Decidendi
The central legal principle established in this case is that, in a claim for trespass to the person — whether framed in assault or battery — the claimant's provocation of the defendant does not reduce the compensatory damages recoverable for physical injuries actually sustained, provided that the defendant's retaliatory blow was grossly disproportionate to the provocation received.
The court applied Watson v Christie (1800), in which Lord Eldon stated that damages must be awarded to the extent of the injury suffered and must not be diminished by reason of the circumstances under which they were inflicted. The court also applied Fontin v Katapodis (1962), a decision of the High Court of Australia which was directly in point, affirming that provocation does not operate to reduce compensatory damages in a trespass to the person claim.
The three defences pleaded by the defendant were each rejected on the following grounds.
Ex turpi causa non oritur actio: The defence failed because the defendant's blow was so savage and so grossly out of proportion to what the claimant had done that it could not properly be said that the parties were engaged in a common unlawful enterprise of equivalent culpability.
Volenti non fit injuria: Although a participant in a fight may be taken to accept the ordinary risks of incidental blows in the course of that fight, he does not thereby assume the risk of a blow that is wholly disproportionate to the occasion. The claimant had not voluntarily assumed the risk of the severe and savage injury that was in fact inflicted.
Contributory fault under the Law Reform (Contributory Negligence) Act 1945: Section 1(1) provides for apportionment of damages where the damage suffered by the claimant results partly from his own "fault". The term "fault" is defined in s 4 of the Act as negligence, breach of statutory duty, or other act or omission giving rise to liability in tort or the defence of contributory negligence. The court held that this provision was inapplicable on the facts. The claimant's conduct — however rude, foolish, or provocative — did not constitute "fault" within the statutory definition. Accordingly, no apportionment could be made.
Obiter Dicta
Several significant observations were made by the members of the Court of Appeal beyond the strict ratio of the decision.
First, it was observed that where two persons agree to engage in a fight, each voluntarily accepts the ordinary risks of incidental injury in the course of that fight. However, this acceptance does not extend to a blow that is savage or wholly disproportionate to the encounter. The distinction between a blow that falls within the scope of an implied assumption of risk and one that falls entirely outside it is a matter of degree and proportion.
Secondly, and importantly for the assessment of damages in trespass claims, it was stated in terms that the fact that a claimant has behaved badly — whether through rudeness, provocation, or an initial act of aggression — is not a matter that a court may take into account when awarding compensatory damages for physical injuries sustained as a result of a civil wrong unlawfully inflicted upon him. Compensatory damages are directed at compensating the claimant for the harm suffered, not at penalising him for his prior conduct. It was further observed that the claimant's conduct, however cantankerous or ill-judged, could not realistically be characterised as contributory negligence capable of engaging the statutory apportionment mechanism.
Thirdly, it was noted that the Law Reform (Contributory Negligence) Act 1945 was not designed to apply to cases of trespass to the person intentionally inflicted, and that extending the statutory apportionment regime to such cases would be both legally incorrect and doctrinally unsound in this context. This observation has subsequently informed the debate, considered in later authorities including Co-Operative v Pritchard [2011], concerning the proper scope of contributory negligence in intentional tort claims.