England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF' APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
JUDGE IN CHAMBERS

		Royal Courts of Justice.
		10th June 1976.

REVISED

THE MASTER OP THE ROLLS: In this case we do not know the true facts. We only know the allegations in the pleadings. According to them Timothy Murphy was a man of 29. He was a self-employed builder, that is, on the "lump" earning "between £60 and £70 a week. On the 19th September, 1974 he, with some other men, made a wicked plot together. They decided to beat up another man called John Joseph Culhane. They went to an address at 20 Grove Place in Greater London. We do not know anything of what took place except that there was a "criminal affray". Luring it John Culhane is said to have struck Timothy Murphy on the head with a plank, and killed him. John Culhane was charged with murder. He was tried at the Central Criminal Court on the 25th April, 1975. At first, he pleaded not guilty, but after the case had been opened and some evidence heard, he changed his plea to Guilty of manslaughter. He was sentenced to eight years which was reduced to five years by the Court of Appeal.

Timothy Murphy's widow now brings an action against John Culhane for damages under the Fatal Accidents Act, claiming damages on behalf of herself and her baby daughter. I do not suppose he has any money to pay any damages as he is still in prison. But legal aid has, I believe, been granted to both sides.

The question is whether or not Mrs. Murphy is entitled to judgment on the pleadings without any trial. The statement of claim says:

"On or about the nineteenth day of September, 1974, near Grove Place, in the Area of Greater London, the Defendant assaulted and beat the Deceased by striking him on the head with a plank. The said assault was unlawful. The Plaintiff intends to adduce evidence pursuant to Section 11 of the Civil Evidence Act, 1968, that the Defendant was on the 25th day of April, 1975, convicted on his own plea of guilty before the Central Criminal Court of manslaughter of the Deceased".

The Defence admits those allegations and further admits that, by reason of the assault, the deceased was killed. It then says:

"The said assault occurred during and as part of a criminal affray which was initiated by the Deceased and others who had together come to 20 Grove Place on the occasion in question with the joint criminal intent of assaulting and beating the Defendant".

That is followed by legal contentions of ex turpi causa non oritur actio, volenti non fit injuria, and that the deceased's said death was caused in part by his own aforesaid fault.

On those pleadings the plaintiff applied for judgment under Order 27 Rule 3 which gives the court power to give judgment on admissions. The Master and the Judge both felt that, on the state of the authorities, they were bound to give judgment for Mrs. Murphy and shut out these defences of Mr. Culhane. Judgment was given for damages to be assessed. I gather that the Judge felt most unwilling to do this, but felt he was bound by the cases. So I must deal with them.

There are two cases which seem to show that, in a civil action for damages for assault, it is no answer for the defendant to say that the plaintiff was himself guilty of provocation. The only defences would appear to be that the assault was done in self-defence or by accident. Provocation, it is said, can be used to wipe out the element of exemplary damages but not to reduce the actual figure of pecuniary damages. It was so said by the High Court of Australia in 1962 in the case of Fontin v. Katapodis, reported in (1962-1963) Commonwealth Law Reports 177 and followed by this court in 1968 in Lane v. Holloway (1968) 1 Queen's Bench 379. But those were cases where the conduct of the injured man was trivial - and the conduct of the defendant was savage -entirely out of proportion to the occasion. I do not think they can or should he applied where the injured man, by his own conduct, did provoke the other to retaliate by force proportionate to the occasion. So far as general principle is concerned, I would like to repeat what I said in the later case of Gray v. Barr (1971) 2 Queen's Bench at 569: "In an action for assault, in awarding damages, the judge or jury can take into account, not only circumstances which go to aggravate damages, but also those which go to mitigate them". That is the principle I prefer to the earlier cases. Apart altogether from damages, however, I think there may well be a defence on liability. If Murphy was one of a gang which set out to beat up Culhane, it may well be that he could not sue for damages if he got more than he bargained for. A man who takes part in a criminal affray may well be said to have been guilty of such a wicked act as to deprive himself of a cause of action, or, alternatively, to have had taken upon himself the risk. I put the case in the course of argument: Suppose that a burglar breaks into a house and the householder, finding him there, picks up a gun and shoots him - using more force, may be, than is reasonably necessary. The householder may be guilty of manslaughter and liable to be brought before the criminal court. But I doubt very much whether the burglar's widow will have an action for damages. The householder might well have a defence either on the ground of ex turpi causa non oritur actio or volenti non fit injuria. So in the present case it is open to the defendant to raise both those defences. Such defences would go to the whole claim.

There is another point, too, even if the widow were entitled to damages under the Fatal Accidents Act, they fall to be reduced under the Law Reform Contributory Negligence Act, 1945 because the death of her husband might be the result partly of his own fault and partly of the default of the defendant: see section 1(1) and section 1(4) of the Act. On this point I must explain a sentence in Gray v. Barr (1971) 2 Queen's Bench at page 569 where the widow of the dead man was held to be entitled to full compensation without any reduction. Her husband had not been guilty of any "fault" within section 4 of that Act, because his conduct had not been such as to make him liable in an action of tort. So also in Lane v. Holloway, as Lord Justice Winn pointed out at page 393. But in the present case the conduct of the deceased man may well have been such as to make him liable in tort.

It seems to me that this is clearly a case where the facts should be investigated before any judgment is given. It should be open to Mr. Culhane to be able to put forward his defences so as to see whether or not and to what extent he is liable in damages.

I would therefore allow the appeal. The judgment should be set aside and the case go for trial accordingly.

LORD JUSTICE ORR: I agree.

MR. JUSTICE WALLER: I agree.

(Order: Appeal allowed with costs here and below hot to be enforced without the leave of the court. Leave to appeal to the House of Lords refused)