Lane v Holloway

JurisdictionEngland & Wales
CourtCourt of Appeal
Judgment Date30 Jun 1967
Judgment citation (vLex)[1967] EWCA Civ J0630-5

[1967] EWCA Civ J0630-5

In The Supreme Court of Judicature

Court of Appeal

Civil Division

From His Honour Judge Pennant Dorchester County Court


The Master of the Rolls (Lord Denning)

Lord Justice Salmon and

Lord Justice Winn

George Victor Lane
Charles Allen Holloway

MR BRIAN GALPIN (instructed by Messrs William Baston & Sons, Agents for Messrs Greech, Best & Redfer, Sturminster Newton) appeared as Counsel for the Appellant.

MR D. P. O'BRIEN (instructed by Messrs White & Leonard and Corbin Greener, Agents for Messrs Look, Reed & Look, Dorchester) appeared as Counsel for the Respondent.


On the 21st July, 1966 the peace of the Ancient Borough of Dorchester was disturbed. Mr Lane was a retired gardener aged 64. He was living in a quiet court just off the High East Street. Backing on to that court there was a cafe which was run by a young man, Mr Holloway, aged 23. The people in the court did not like the sound of a j box from the cafe. 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 the 21st July, 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 nineteen 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.


This 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. thorn 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 these 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 oritur non action. 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. 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 25 and a man of 64, who 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 very extensively". He gave a sum of £75 saying it would have been very much higher but for the 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 anyelement 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 cut 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.


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 action or volenti non fit injuria. These are recondite topi about which there is much learning and about which much has been written. 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 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 cafe 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 cafe 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 cafe 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 gentleman 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 get out of bed and said: "What did you call my wife?", and the old gentlemen, 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 . 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, where-upon the defendant smashed his fist into the plaintiff's face. The ophthalmic surgeon, who apparently had spent some 21 years at and East Grinstead (very famous centers of plastic surgery) with vast experience of injuries...

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    ...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 o......
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