B e f o r e :
THE MASTER OF THE ROLLS
(Lord Denning)
LORD SALMON
and
LORD JUSTICE WINN
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GEORGE VICTOR LANE
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Plaintiff/Respondent
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v
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CHARLES ALLEN HOLLOWAY
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Defendant/Appellant
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(Transcript from the Shorthand Notes of the Association of Official Shorthandwriters Ltd.,
Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London, W.C.2.)
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MR Brian Galpin (instructed by Messrs William Easton & Sons Agents for Creech, Best & Redferns, Sturminster Newton)
appeared as Counsel for the Appellant.
MR D. P. O'Brien (instructed by Messrs White & Leonard and Corbin Greener Agents for Lock, Reed & Lock, Dorchester.)
appeared as Counsel for the Respondent.
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
MASTER OF THE ROLLS: On July 21st 1966, the peace of the Ancient Borough of Dorchester was disturbed. Mr. Lane, the plaintiff, was a retired gardener aged 64. He was living in a quiet court just off High East Street. Backing onto that court there was a café which was run by a young man, Mr. Holloway, the defendant, aged 23. The people in the court did not like the sound of a juke-box from the café. They also objected because the customers relieved themselves at night in the courtyard. To meet their objection Mr. Holloway began to build some lavatories. But relations were strained. On July 21st 1966, at about 11 o'clock at night Mr. Lane, the 64-year-old, came back from the public-house. He stopped outside his door and started talking to his neighbour, Mrs. Brake. Mr. Holloway was in bed drinking a cup of coffee. His wife, hearing Mr. Lane and Mrs. Brake talking, called out to them: "You bloody lot." Mr. Lane replied: "Shut up, you monkey-faced tart." Mr. Holloway sprang up and said: "What did you say to my wife?" He said it twice. Mr. Lane said: "I want to see you on your own, " implying a challenge to fight. Whereupon Mr. Holloway came out in his pyjamas and dressing-gown. He walked up the courtyard to the place where Mr. Lane was standing at his door. He moved up close to Mr. Lane in a manner which made Mr. Lane think that he might himself be struck by Mr. Holloway. Whereupon Mr. Lane threw a punch at Mr. Holloway's shoulder. Then Mr. Holloway drew his right hand out of his pocket and punched Mr. Lane in the eye, a very severe blow. Mr. Holloway said: "You hit me first." Mr. Lane said: "If I had two good pins you would not have done this. I shall make a case of it." Mr. Lane was taken to hospital. It was indeed a very severe wound. It needed 19 stitches. He had also to have an operation. He was in hospital for a month. It made worse his chronic glaucoma. The surgeon of the Dorset General Hospital said that in his view the injury was caused by a hard object, not a soft one. He had never seen injuries of this kind caused by a fist. It was suggested that Mr. Holloway must have used a weapon or a hard instrument. But the Judge found that that was not so: it was caused by a fist. Nevertheless it caused this very severe injury.
The case went to the magistrates' court. An objection was taken to the Judge being told what took place there. It was said that what takes place in a criminal court is not evidence in a civil court. I have for a long time doubted Hollington v. Hewthorn and hope it may soon be done away with. I do not think it prevents our being told that the magistrates found Mr. Holloway guilty of unlawful wounding.
The first question is: Was there an assault by Mr. Holloway for which damages are recoverable in a civil court? I am quite clearly of opinion that there was. It has been argued before us that no action lies because this was an unlawful fight: that both of them were concerned in illegality; and therefore there can be no cause of action in respect of it. Ex turpi causa oritur non actio. To that I entirely demur. Even if the fight started by being unlawful, I think that one of them can sue the other for damages for a subsequent injury if it was inflicted by a weapon or savage blow out of all proportion to the occasion. I agree that in an ordinary fight with fists there is no cause of action to either of them for any injury suffered. The reason is that each of the participants in a fight voluntarily takes upon himself the risk of incidental injuries to himself. Volenti non fit injuria. 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.
In this case the Judge found that
"with a young man of 23 and a man of 64, whom he knows to be somewhat infirm, the young man cannot plead a challenge seriously: nor is he entitled to go and strike him because of an insult hurled at his wife."
I quite agree. Mr. Holloway in anger went much too far. He gave a blow out of proportion to the occasion for which he must answer in damages.
Thus far I entirely agree with the Judge. Then the question arises as to the amount of damages. The Judge said that
"to a substantial extent the plaintiff brought the injury on himself: first, by insulting the defendant's wife; secondly, by challenging the defendant to fight; and, thirdly, by striking the first blow. These matters in my judgment must operate to reduce the damages extensively."
He gave a sum of £75, saying it would have been very much higher but for reasons stated.
Now there is an appeal. It is said that the Judge ought not to have reduced the damages. The Judge had cases before him, both in this country and New Zealand and Canada, where it was held that provocation could be used to reduce the damages. But most of these cases were considered by the High Court of Australia in 1962 in Fontin v. Katapodis, 108 Commonwealth Law Reports, p.177. The plaintiff struck the defendant with a weapon, a wooden T-square. It broke on his shoulder. There was not much trouble from that. But then the defendant picked up a sharp piece of glass with which he was working and threw it at the plaintiff, causing him severe injury. The Judge reduced the damages from £2,850 to £2,000 by reason of the provocation. But the High Court of Australia, including the Chief Justice, Sir Owen Dixon, held that provocation could be used to wipe out the element of exemplary or aggravated damages but could not be used to reduce the actual figure of pecuniary compensation. So they increased the damages to the full £ 2,850.
I think that the Australian High Court should be our guide. The defendant has done a civil wrong and should pay compensation for the physical damage done by it. Provocation by the plaintiff can properly be used to take away any element of aggravation. But not to reduce the real damages. I ought to say in fairness to the Judge that he did not have the benefit of the case in the High Court of Australia. We have had the benefit of it.
On the evidence this young man went much too far in striking a blow out of all proportion to the occasion. It must have been a savage blow to produce these consequences. I think the damages ought to be increased from £75 to £300 and I would allow the appeal accordingly.
LORD JUSTICE SALMON: I agree. Mr. O'Brien has addressed a most interesting argument to us to the effect that his client ought to have succeeded in the court below on the ground of ex turpi causa non oritur actio or volenti non fit injuria. These are recondite topics about which there is much learning. Mr, O'Brien has given us the advantage of his very thorough researches.
In considering these matters, however, I think it is very necessary to keep one's feet firmly on the ground and focus on the facts of this particular case. The salient facts, as I see them, are these: The defendant owns a café at the corner of a quiet court in Dorchester. The plaintiff lives in this court. The plaintiff and his neighbours are not very pleased about the activities of the defendant's customers either inside or outside the café and they have expressed their displeasure to the defendant. The defendant has done all he could to meet their points but still much noise comes from the café and there is a good deal of bad blood between the defendant on the one hand and his neighbours, including the plaintiff, on the other. The plaintiff is a rather cantankerous old man of 64 years of age and slightly infirm. The defendant is a healthy young man of 23 years of age. On the night in question an interchange of pleasantries was apparently started by the defendant's wife shouting out of the window to the plaintiff, who was enjoying the air with his neighbour, Mrs. Brake: "You bloody lot," to which he replied with scant courtesy: "Shut up, you monkey-faced tart." This was just vulgar abuse on the one side and the other. The defendant was very angry and got out of bed and said: "What did you call my wife?" and the old gentleman, no doubt encouraged and fortified by the beer which he had been drinking that evening, said: "I'll take you on at any time " or words to that effect. The Judge, as my Lord has pointed out, has said what must be obvious to any sensible man: nobody of 23 in those circumstances could seriously believe he was being challenged to a fight by this troublesome old man 40 years older than he was, rather infirm and full of beer. What occurred is clear. The defendant was extremely annoyed, and that perhaps is not surprising. What I think is surprising is that he got out of bed, put on his dressing-gown and went down to the plaintiff; and it seems fairly obvious that he went down to beat him up and teach him a lesson. He walked up very close to the plaintiff, as the Judge has found, in a menacing way, giving the plaintiff the impression that he was no doubt about to be struck; the plaintiff then punched this man 40 years younger than himself on the shoulder, whereupon the defendant smashed his fist into the plaintiff's face. The ophthalmic surgeon, who apparently had spent some 21 years at Basingstoke and East Grinstead (very famous centres of plastic surgery) with vast experience of injuries of this kind, said that he, at any rate, had never seen any such injuries produced by a fist alone; there must have been some hard object to produce these injuries which he said could be described as major wounds. I am bound to say, having seen the photographs, that I am not at all surprised at the view expressed by the ophthalmic surgeon. However, in cross-examination he said in effect: "I suppose anything is possible and I cannot say it is impossible that those injuries could have been caused by a fist." The learned Judge rejected the suggestion that the defendant might have been wearing a knuckle-duster or had some pennies between his fingers and came to the conclusion that he did no more than hit the plaintiff with his fist, and that is a finding which we, of course, entirely accept: it is binding on us. According to the evidence of the surgeon, this man was kept in hospital for a month. He was moved from the local hospital to the Royal Eye Infirmary. He had to have two operations for the removal of blood clots and the correction of a skin flap and no fewer than 19 stitches were inserted around his eye. Since the injuries were inflicted with the fist alone, the conclusion is inescapable that it must have been a savage blow, that the plaintiff must have smashed his fist with great force into the eye of this man 40 years older than he was, after coming up to him in a threatening manner and having received no more than a slight punch on the shoulder.
To say in circumstances such as those that ex turpi causa non oritur actio is a defence seems to me to be quite absurd. Academically of course one can see the argument, but one must look at it, I think, from a practical point of view. To say that this old gentleman was engaged jointly with the defendant in a criminal venture is a step which, like the learned Judge, I feel wholly unable to take.
The defence of volenti non fit injuria seems to me to be equally difficult. It is inconceivable that the old man, full of beer as he was, was voluntarily taking the risk of having an injury of this kind inflicted upon him. I think the learned Judge was quite right in rejecting the defence of volenti non fit injuria.
As to the damages, but for one matter which the learned Judge (wrongly, I think) took into consideration, it is obvious that £75 is a ludicrously inadequate sum to award for injuries such as those I have described. The learned Judge, however, thought that the old man had behaved very badly, and indeed no one could question that view. He had been very impolite, he had also been rather impolitic in saying: "I'll take you on at any time"; he had been extremely rude to the defendant's wife; and, for good measure, when he went into the witness-box he was not very particular about what he said, as he thought it might increase the amount of money he would receive; the learned Judge said that the plaintiff gave some dishonest evidence on damages and indeed that he did not believe anything the plaintiff said unless it was corroborated. I entirely reject the contention that because a plaintiff who has suffered a civil wrong has behaved badly, this is a matter which the 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 upon him.
I would unhesitatingly come to that view without any authority at all. I cannot see how logically or on any principle of law the fact that the plaintiff has behaved rather badly and is a cantankerous old man can be even material when considering what is the proper compensation for the physical injury which he has suffered.
There is no modern English authority on this subject. If, however, one goes back to the old authorities, one finds Lord Eldon saying just what I have stated in the case of Watson v. Christie 2 Bosanauet & Pullen. p.224; 126 English Reports, p.1248. In that case a sea captain had one of his able-bodied seamen severely beaten so that he became extremely ill and likely to continue so for the rest of his life. When the seaman brought an action, the defendant set up by way of defence and in mitigation of damage that he had been merely correcting the plaintiff for severe breaches of discipline. Lord Eldon said:
"therefore the evil actually suffered in consequence of what was not justified ought to be compensated for in damages; that the jury should give damages to the extent of the evil suffered, without lessening them on account of the circumstances under which it was inflicted; that if they gave damages beyond a compensation for the injury actually sustained they would give too much, but that if they gave less they would not give enough."
It is said that that case is not really an authority in the plaintiff's favour because it was decided merely on a point of pleading. I do not so read Lord Eldon's judgment. It is true that the report is not a full one. I think, however, that Lord Eldon was saying that if the defendant wished to rely on the plaintiff's conduct as a matter of defence, it ought to have been specially pleaded. I think that what he said in relation to the damages was not confined to the pleading point. He was stating a broad principle which is obviously a sensible one.
The case on which the defendant relied was Fraser v. Berkeley 7 Carrington & Payne, p.621. Apparently the defendant had written a book and the plaintiff had written a rather caustic criticism of it which reflected not only on the defendant's skill as an author but on his character and that of his family. This annoyed the defendant very much, and with his brother he went to the plaintiff's shop and gave him a very severe beating indeed with his fists and a horse-whip. The summing-up of Lord Abinger is relied upon by the defendant. Again this is not a very full report. There is no doubt that in the course of that summing-up Lord Abinger told the jury that in assessing the damages they could properly take into account the plaintiff's conduct and the imputations which he had made against the defendant and his family. But in those days, and indeed until very recently, it had been common for counsel for the plaintiff in cases of this sort to tell the jury, and I have no doubt they did it in rather more extravagant terms in 1836 than they did even in the days which I can remember, that the plaintiff was entitled to damages which would show the defendant what the jury thought of his conduct and would teach him a lesson so that he would never behave so disgracefully again. I should be surprised if the counsel engaged in the Fraser case had not taken that line. The report of what Lord Abinger said is entirely consistent with the view that he was dealing with that sort of plea. There is no doubt that if a plaintiff is saying: "This man has behaved absolutely disgracefully and I want exemplary damages because of his disgraceful conduct," when the court is considering how disgraceful the conduct was or whether it was disgraceful at all, it is material to see what provoked it. This is relevant to the question of whether or not exemplary damages should be awarded, and, if so, how much. Apparently in 1836 it was considered reasonable for an educated gentleman to express his disapproval of a criticism of his book or of himself by horse-whipping the critic, but only, it would seem, if the horse-whipping was limited to two or three strokes. It is perhaps fortunate that those ideas no longer prevail. What Lord Abinger was saying was that whatever the provocation, the defendant had really gone far beyond anything one would expect of an educated gentleman. Looked at in that way I do not believe that that case is of any real assistance to the defendant.
There are many cases from the Commonwealth Law Reports in which the question has been considered as to whether or not the fact that the plaintiff behaved badly can diminish damages which are awarded as compensation for physical injury. Some of these decisions are conflicting. For my part I entirely accept what was said in the High Court of Australia in Fontin v. Katapodis. It was an exceptionally strong court consisting of Chief Justice Sir Owen Dixon , Mr Justice McTiernan and Mr Justice Owen. The case seems to me, for all practical purposes, indistinguishable from the present and it states in the plainest terms what, as I have already said, I should have been prepared to hold without any authority, namely, that on principle, when considering what damages a plaintiff is entitled to as compensation for physical injury, the fact that the plaintiff may have behaved badly is irrelevant. I think it is important to remember this. Some of the older English authorities and some of the Commonwealth cases appear to fall into the error, which until recently had by no means been eliminated, of thinking that damages for tort were partly to punish the defendant. We now know, certainly since Rookes v. Barnard, that they are nothing of the kind, that they are purely compensatory - with the exception, of course, of exemplary damages. and in the present case there was no question of exemplary damages being claimed or awarded.
The learned Judge, however, was persuaded that he could take the plaintiff's conduct into account, and he obviously did so, and discounted a great deal on this account. To my mind, even if he was entitled to discount anything, which, in my view, he was not, he discounted much too much.
Mr. O'Brien relied also upon contributory negligence to reduce the damages. At first he relied on a wider ground under the Law Reform (Contributory Negligence) Act, 1945, but in the end I think he restricted his argument under this Act to contributory negligence. As Winn L.J. pointed out in the course of the argument, if the plaintiff on the facts of this case can be said to have been negligent, then before the statute what he did would have afforded the defendant a complete defence to the action - a somewhat surprising proposition. To my mind it is impossible to hold that what this old man did, however rude or silly or cantankerous, amounted to contributory negligence.
In my judgment the sum of £75 is far too little and I do not dissent from my Lord's proposal that the damages should be increased to £300. My only doubt is as to whether that sum is sufficient. I would allow the appeal accordingly.
LORD JUSTICE WINN: I agree completely with the judgments delivered by my Lords. I do not desire to add anything for myself on the general issues which have fallen to be discussed and decided in this appeal beyond saying that I am completely satisfied myself that the decision of the High Court of Australia is not only correct but also affords, as so often is the case with decisions of that court, most lucid and authoritative guidance for this court in the decision of the present appeal.
I desire, however, to pay a tribute to Mr. O'Brien for his industry and for the quite exceptional ingenuity with which he has framed and the great eloquence with which he has persistently presented his arguments upon the various pleas which he has put forward. I trust he will forgive me for having made it clear during the hearing, and I repeat it now, that I think in the end none of them has any validity whatsoever. So far as his submissions raised upon the Act of 1945 are concerned, I desire to say plainly that in my opinion there is here nothing, notwithstanding his argument, which can constitute a fault within the definition of "fault" in section 1 (1) of the Act.
In justice to Mr. O'Brien and in deference to his horror revealed when I said that I thought Coney had nothing to do with anything relevant in the present appeal, and when he heard me say that I did not think that all fights per se were illegal, I desire to say that this important decision of the Queen's Bench Division in 1882 by 11 Judges, with which one has long been familiar as a leading case on the topic of aiding and abetting, has nothing whatsoever to do with the question whether such a fight as took place on July 21 between the parties to the present appeal was illegal. Whether it was is a question of fact to be decided in relation to the facts of this particular case. I do not repeat what my Lords have very pertinently said about that, but only that the character of any particular fight must be judged as a fact; and so must a distinction be always drawn between prize-fighting and fighting. I hope on reflection Mr. O'Brien may be able to understand why I insisted, I am afraid at great length, upon that matter.
Two of the eleven Judges who decided Coney's case were the great criminal Judges Sir James Fitzjames Stephen and Mr Justice Hawkins. Mr Justice Stephen said this at page 549 of 8 Queen's Bench Division:
"The principle as to consent seems to me to be this: When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. But the injuries given and received in prize-fights are injurious to the public, both because it is against the public interest that the lives and the health of the combatants should be endangered by blows, and because prize-fights are disorderly exhibitions, mischievous on many obvious grounds. Therefore the consent of the parties to the blows which they mutually receive does not prevent those blows from being assaults."
The learned Judge proceeded, after referring to tournaments which, even if commanded by the King, would nevertheless be illegal because of the manifest danger of death occurring:
"In cases where life and limb are exposed to no serious danger in the common course of things, I think that consent is a defence to a charge of assault, even when considerable force is used, as, for instance, in cases of wrestling, singlestick, sparring with gloves, football, and the like; but in all cases the question whether consent does or does not take from the application of force to another its illegal character, is a question of degree depending upon circumstances."
Mr Justice Hawkins said at page 554:
"The cases in which it has been held that persons may lawfully engage in friendly encounters not calculated to produce real injury to or to rouse angry passions in either, do not in the least militate against the view I have expressed; for such encounters are neither breaches of the peace nor are they calculated to be productive thereof, but if, under colour of a friendly encounter, the parties enter upon it with, or in the course of it form, the intention to conquer each other by violence calculated to produce mischief, regardless whether hurt may be occasioned or not, as, for instance, if two men, pretending to engage in an amicable spar with gloves, really have for their object the intention to beat each other until one of them be exhausted and subdued by force, and so engage in a conflict likely to end in a breach of the peace, each is liable to be prosecuted for assault."
He went on to say it is always a question for the jury in case of an indictment, as it was for this County Court Judge.
So within the limits of his findings of fact it is for this court. I do not, having regard to those findings, regard what happened as a fight to which the plaintiff consented, to which he was volens. I regard it as a case where this young man went down to thrash the other, older man.
I would only add one final observation, and that again is by way of explanation, since apology would not, I think, be appropriate, to Mr. O'Brien for having harped on this point. I can see no relevance whatever in the plea sought to be relied upon of ex turpi causa: that really follows on what I have seen fit to say about the limitations, in any relevant sense, of Reg. v. Coney.
I agree that this appeal should be allowed to the extent mentioned by my Lords.
Order: Appeal allowed with the costs of the appeal. Judgment to be entered for the plaintiff for the sum of £300. The plaintiff to have three-quarters of his costs in the Court below. Cross appeal dismissed with costs. Payment out of £125.
