Lane v Holloway [1968] 1 QB 379

Key points

  • A provocation does not amount to fault under s1(1) Law Reform (Contributory Negligence) Act
  • The defences of illegality and voluntary assumption of risk do not apply if injury is caused in a fight that is out of proportion


  • C provoked his neighbour D into engaging in a fight
  • C punched D in the shoulder before D punched C in the eye, dealing a severe blow that caused C to be hospitalised for a month
  • C made a claim in assault against D
  • D argued that he had the benefit of either the defence of illegality (ex turpi causa non oritur action), voluntary assumption of risk (volenti non fit injuria), or that the damages for be entirely reduced under a defence of contributory negligence

Held (Court of Appeal)

  • The defences of illegality and voluntary assumption of risk did not apply
  • D was liable in damages for the entire extent of injury to C, the provocation by C could not amount to contributory negligence

Lord Denning MR

  • No defence of illegality or voluntary assumption of risk: p. 386 – 387
    • Even if the fight started by being unlawful, damages can be obtained for injury inflicted by a blow all proportion to the occasion.
    • A party does not take on himself the risk of a savage blow out of all proportion to the occasion
  • Provocation by a claimant could properly be used to take away any element of aggravated or exemplary damages but it could not reduce “the real damages”

Salmon LJ

  • “To my mind it is impossible to hold that what this old man did, however rude or silly or cantankerous, amounted to contributory negligence”

Winn LJ

  • The provocation cannot come within the definition of ‘fault’ under the s1(1) Law Reform (Contributory Negligence) Act 1945: p. 393