Co-Operative Group (CWS) Ltd v Pritchard

Miss Debbie Pritchard, the respondent to this appeal, worked in the store of the appellant company (“the Co-op”), in Hanham, Bristol. By October 2003 she had done so for six years and was then aged 37. Sometimes she had ill-health and had periods off work, but overall her work record was good. On 11 October 2003 Miss Pritchard had been off work for two weeks. She was still not feeling well and she wanted to take the day off as holiday leave. She and her twin sister, Donna, rang the store manager, Mr Neville Wilkinson, and tried to persuade him to let Miss Pritchard have a day’s rest. He refused. The Pritchard sisters tried to speak to a more senior member of staff but he was not available. The sisters became angry and agitated. They rang a friend who did not work at the Co-op, Mrs Coates, and told her of the problems. Mrs Coates decided to go to the store where she spoke angrily to Mr Wilkinson. The Pritchard sisters then went to the store, together with Donna Pritchard’s four year old daughter. They wanted to confront Mr Wilkinson. Mr Wilkinson was outside having a cigarette because he was nervous about any possible confrontation with the Pritchard sisters. Donna and Debbie Pritchard followed him when he went inside and they started to shout and use foul language at him. Debbie Pritchard in particular was abusive to Mr Wilkinson and in doing so she made a lot of noise and disturbance. Mr Wilkinson swore back. Mr Wilkinson decided Debbie Pritchard must leave the store premises, so he asked her to do so. She refused. He then took hold of Debbie Pritchard’s arms firmly and held them in front of her. Donna grabbed hold of Mr Wilkinson and there was a struggle, during which Debbie Pritchard bit Mr Wilkinson. Debbie Pritchard stumbled on the step at the store entrance and was hurt before she, her sister and niece all left.

Miss Debbie Pritchard never returned to work at the store. Her employment with the Co-op was formally terminated in March 2004. She has been off work ever since the incident. Miss Pritchard said that the assault led to a near complete psychiatric breakdown, depression and agoraphobia and caused her inability to work.

Miss Pritchard sued the Co-op. In the Particulars of Claim the events of 11 October 2003 were set out. Paragraph 4.1 alleged that they constituted the tort of assault and battery and the tort of false imprisonment by Mr Wilkinson, for which acts the Co-op was said to be vicariously liable to Miss Pritchard. Other allegations about a course of harassment and bullying prior to the events of 11 October 2003 were also pleaded but they are not now relevant.

The Defence denied that Mr Wilkinson had assaulted Miss Pritchard. In the alternative it said, at paragraph 15, that her “negligence/conduct caused or contributed to the assault”. The particulars alleged that Miss Pritchard attended the store “with the intention of causing a scene”; they accused her of “verbally abusing Mr Wilkinson on the telephone” and subjecting Mr Wilkinson to a “tirade of offensive and intimidating language” as well as acting in a “physically aggressive manner towards Mr Wilkinson” and biting him.

The Defence prompted a Reply of no less than 79 paragraphs. Paragraph 75 denied that “contributory negligence” had any legal relevance in relation to the claim for assault and battery.

At the trial before HHJ Bromilow Miss Pritchard and Mr Wilkinson gave evidence. There were other witnesses of fact. The parties called consultant psychiatrists to deal with the psychiatric history of Miss Pritchard before the events of 11 October 2003 and with the course of her psychiatric condition afterwards and also with the question of what (if any) psychiatric illness she would have suffered even if she had not been the victim of an attack on 11 October 2003 in the manner she alleged. The experts were Dr Raymond Brown, who gave evidence on behalf of the claimant and Dr Paul Aylard, who did so on behalf of the Co-op. Both served full reports. Long before the trial they met and prepared a joint statement dated 25 February 2009. It set out their points of agreement and disagreement.

Because the appellant challenges the judge’s conclusions on the effect of the expert evidence of Dr Aylard, which the judge accepted generally over the evidence of Dr Brown, I must outline the matters on which the experts were agreed and the issues which divided them, as identified in their joint statement. First, the experts’ agreements: they agreed that Miss Pritchard had a longstanding vulnerability to psychological disturbance and, as a result, a significantly increased risk of suffering from symptoms of anxiety and depression. They also agreed that she had had a history of symptoms of anxiety and depression. Further, they agreed that, since October 2003, Miss Pritchard had presented with symptoms of depression and anxiety consistent with both the diagnosis of a social phobia and of depression. It was common ground that Miss Pritchard had had gynaecological problems over some time prior to 11 October 2003.

However, the experts disagreed on the effect of an assault on Miss Pritchard’s psychological problems. The statement records Dr Aylard’s view as being:

“..[that] even if the court [accepted] in full the claimant’s evidence [on bullying and assault], Miss Pritchard would have ended up in a similar situation within 1 to 2 years with increasing periods of ill-health due to anxiety and depression. He notes that she was already off sick at the time of the incident”.

In contrast, Dr Brown’s view was that, although Miss Pritchard was off sick at the time of the 11 October 2003 incident, she had had a continuous employment record until then. He said:

“…If the assault and bullying is proven, this would be a major factor that would have disturbed her psychologically and affected her capacity to work, particularly since she experienced her self-esteem and pride shattered. The latter contributed to the social phobias and anxieties that particularly would have made it difficult, regardless of motivation to return to work. Her employment history has been severely interrupted as a result”.

The experts agreed that Miss Pritchard would benefit from 20 sessions of cognitive behaviour therapy so as to develop a gradual response to her reported agoraphobic symptoms. They also agreed that, from a psychological viewpoint, Miss Pritchard was capable of working from home from June 2008 onwards. However, they were disagreed on when she would be able to return to work outside the home. Dr Aylard believed that she would be able to return to such work part –time within 1 year and full – time within 2 years. Dr Brown believed it was more likely than not that Miss Pritchard could never return to work.

Lastly, Dr Aylard stated that Miss Pritchard may well have been capable of work from as early as 2004, but had not been motivated either to work or to cooperate fully with treatment because of her involvement in her claim.

The judge’s conclusions on the events of 11 October 2003 are as follows: first, just before Mr Wilkinson took hold of Miss Pritchard’s arms, he was not under any immediate threat of violence from her. Secondly, that by taking hold of Miss Pritchard’s arms, Mr Wilkinson was using unreasonable and unnecessary force in the particular circumstances which “was not a fair and reasonable response to the situation”. (Footnote: ¹ ) Thirdly, that Debbie Pritchard was feeling physically unwell and was in a distressed and emotional state when she attended the store and was at risk of becoming increasingly upset. (Footnote: ² ) Fourthly, the judge rejected the Co-op’s pleas that Mr Wilkinson acted in self-defence or was taking action to prevent the commission of a crime by Miss Pritchard. (Footnote: ³ ) Fifthly, however, the judge found that “…there was a degree of provocation and the part of Miss Pritchard, who was abusive towards [Mr Wilkinson]”. (Footnote: ⁴ ) Sixthly, the judge rejected all the other claims for harassment, bullying and false imprisonment that had been made by Miss Pritchard.

The judge concluded that it was “not open” to him to make a finding of contributory negligence against Miss Pritchard. He considered the Law Reform (Contributory Negligence) Act 1945 (“the 1945 Act”) and a number of cases, including the Court of Appeal decisions of Lane v Holloway (Footnote: ⁵ ) and Murphy v Culhane. (Footnote: ⁶ ) He concluded that he was bound by Lane v Holloway to reject the defence of contributory negligence on the facts of this case. He distinguished other cases on their facts. (Footnote: ⁷ ) The judge did not record whether he would have found Miss Pritchard’s behaviour would have amounted to “contributory negligence” if he had held that was possible as a matter of law.

On the question of whether the assault and battery that Miss Pritchard had suffered on 11 October 2003 had caused her subsequent mental health problems, the judge made the following findings: first, he said that he preferred the evidence of Dr Aylard “in respect of causation”. He concluded that Dr Brown’s approach to reporting on the claimant’s history “lacks objectivity”. In contrast he found that Dr Aylard had been both objective and fair in his assessment. In contrast to Dr Brown, Dr Aylard had considered a number of alternative bases. (Footnote: ⁸ ) Secondly, he accepted Dr Aylard’s evidence that if, as the judge had found, Debbie Pritchard was in a pre-existing distressed and emotional state when she went to the Co-op store that morning, then any touching by Mr Wilkinson was likely to cause a severe psychiatric reaction. Thirdly, he found, as Dr Aylard had accepted, that there was no evidence that Debbie Pritchard had suffered from agoraphobia prior to 11 October 2003, but that she had suffered from it ever since the assault took place. Further, this was “…a manifestation of more severe symptoms of her depressive illness”. (Footnote: ⁹ ) Fourthly, the judge accepted the evidence about Miss Pritchard’s current condition, but he considered that her circumstances could be improved with treatment, as advised by both experts. (Footnote: ¹⁰ )

Paragraph 60 of the judgment then continues:

“… … Dr Aylard has put forward a number of alternative scenarios. I am not persuaded that the assault resulted in a short period of acceleration. I reject the arguments of up to 18 months to two years. I have borne in mind not only the whole of Debbie Pritchard’s medical history, but also her ability to overcome past problems, to return to work and to work industriously. Dr Aylard was not able to say that, but for the assault on 11 ^th October 2003, Debbie Pritchard would have been suffering from agoraphobia within two years. I must bear in mind that she has suffered from its effects for more than six years. ... …”

In paragraph 61 the judge set out his conclusions on the effect of the assault of Miss Pritchard by Mr Wilkinson. He said:

“… … As a result of a serious assault, a trespass to the person, by Mr Wilkinson, her store manager, Debbie Pritchard has suffered significant psychiatric symptoms including agoraphobia. She has been unable to work. I find that, but for this assault, she would have continued to work, notwithstanding her psychiatric history. I find that her current condition is treatable and that the prospects of successful treatment are good. I find that after a period of such treatment, and I allow two years for this purpose, she will be capable of working in her previous capacity. I acknowledge that she will have been away from the workplace by then for more than eight years but she is now only 44 years old and her work was unskilled. ……”

The judge stated that, as a result of these findings he would award, by way of special damages, all Miss Pritchard’s past losses of earnings from the assault up to the date of the trial; plus two years worth of future loss of earnings, discounted for early receipt, together with two years cost of treatment of the kind advised by Dr Aylard. (Footnote: ¹¹ )

The judge then analysed the various factors relevant to an award of general damages for pain, suffering and loss of amenity. He decided that the case fell into the “moderately severe category” as described in the Judicial Studies Board Guidelines 9^th edition. (Footnote: ¹² ) He concluded that Miss Pritchard’s condition would improve once the litigation had ended; that she would then undergo treatment and “on a balance of probabilities, return to full time employment”. Accordingly he awarded general damages in the sum of £25,000. (Footnote: ¹³ ) The judge rejected Miss Pritchard’s claim for aggravated damages. (Footnote: ¹⁴ )

However, the judge did award a sum to compensate Miss Pritchard for future vulnerability and disadvantage upon return to the labour market which he assessed would be within two years from the trial. In doing so he relied on evidence of Dr Aylard, which he accepted, that when Miss Pritchard did return to work, she would be “slightly more vulnerable” than before 11 October 2003. The judge noted that she had been a good worker before, but she would have been absent from the labour market for 8 years when she came to look for employment. He therefore awarded her a sum of £5000 under this head. (Footnote: ¹⁵ )

The total sum of damages under all heads awarded to Miss Pritchard was £142,760.77, inclusive of interest. The judge refused the Co-op permission to appeal his decision, but that was granted by Smith LJ.

The Co-op does not appeal the judge’s conclusion that Mr Wilkinson committed the torts of assault and battery on Miss Pritchard. The judge’s findings of fact on that issue are not challenged and the Co-op accepts it is vicariously liable for the tort of Mr Wilkinson. I note two things concerning the judge’s findings. First, it does not appear to have been argued and the judge did not find that Miss Pritchard became a trespasser on the Co-op’s property at any stage during the incident. I would have thought it was at least arguable that she was once Mr Wilkinson asked her to leave and she refused. Secondly, although the judge found that there was a “degree of provocation” on Miss Pritchard’s part, that is not elaborated. Instead, the Co-op raises two issues on its appeal which would, if successful, reduce the Co-op’s liability for Mr Wilkinson’s tort. These are “the contributory negligence” issue and the “causation” issue.

On behalf of the appellant, Mr Reddiford submitted in relation to the “contributory negligence” issue that it had been conceded below that a plea of contributory negligence could be raised as a partial defence to a claim in tort for assault or battery. Therefore the respondent should not be permitted to argue to the contrary on the appeal. In any event, on authority, Mr Reddiford submitted that a plea of contributory negligence could succeed in an assault (or battery) case, even in a case where the contributory fault was said to be words only. At the most, the plea is not available only in cases where the defendant intended to harm the claimant, (as opposed to the reckless infliction of injury); he said that intention was not found here. On the facts of this case, given the Judge Bromilow’s findings on the behaviour of Miss Pritchard set out at [56], [57] and [63], he would or should have concluded that she was guilty of contributory fault and reduced the damages considerably in consequence.

On the “causation” issue, Mr Reddiford submitted that the judge misinterpreted or misremembered Dr Aylard’s evidence when he held, at [60], that Dr Aylard had not explained how it was that Miss Pritchard had come to suffer agoraphobia, which she had not had before the assault. He had, in fact, explained it. The issue of what form Miss Pritchard’s psychiatric symptoms would have taken was a matter for the experts and once the judge had rejected the evidence of Dr Brown he should have accepted that of Dr Aylard or, if the judge rejected it then he was obliged to explain why, which he did not do. If the judge had accepted Dr Aylard’s evidence (as he should have done) then he would have concluded that Miss Pritchard’s psychiatric symptoms (including agoraphobia) would have manifested themselves within a period of 1 to 2 years (say 18 months) of the assault in any event. If the judge had so found it would have reduced the awards of general damages, lost earnings and care to a total of only £13,242.31. (Footnote: ¹⁶ )

On behalf of the respondent, Mr Chippindall, who did not appear below, submitted on the “contributory negligence” issue that, in principle, a defendant cannot assert contributory negligence and rely on the 1945 Act to reduce the damages awarded to a claimant for the tort of assault or battery. Even if the 1945 Act could be relied on, he submitted that, on the findings of the judge, the actions of Miss Pritchard did not cause the voluntary assault of Mr Wilkinson on her and the judge would not have found her contributorily negligent.

On the “causation” issue, Mr Chippindall submitted that the judge was not bound to accept all the evidence of Dr Aylard. The judge was entitled to reject Dr Aylard’s view that Miss Pritchard would have ended up with agoraphobia even if the assault had not occurred. It was noteworthy that in his earlier reports Dr Aylard did not say that Miss Pritchard would have ended up with agoraphobia within 2 years in any event.

Contributory Negligence: In my view the respondent is entitled to argue that, as a matter of law, the 1945 Act is not applicable to a claim for the tort of assault or battery so that “contributory negligence” on the part of a claimant will not reduce the damages otherwise awardable. The judge held that, as a matter of law, that was the case. The respondent must be entitled to argue in favour of upholding that view. Therefore the questions that arise in relation to this issue can thus be summarised as follows:

Causation: On this issue the questions are:

Section 1(1), (2) and section 4 of the Law Reform (Contributory Negligence) Act 1945 provide:

“1.

Apportionment of liability in case of contributory negligence. E+W+S

(1)

Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage:

Provided that—

(a)

this subsection shall not operate to defeat any defence arising under a contract;

(b)

where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum limit so applicable.

(2)

Where damages are recoverable by any person by virtue of the foregoing subsection subject to such reduction as is therein mentioned, the court shall find and record the total damages which would have been recoverable if the claimant had not been at fault.

……

4.

Interpretation. E+W+S

The following expressions have the meanings hereby respectively assigned to them, that is to say—

“ court ” means, in relation to any claim, the court or arbitrator by or before whom the claim falls to be determined;

“ damage ” includes loss of life and personal injury;

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“ fault ” means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.”

It is now accepted that the definition of “fault” in section 4 of the 1945 Act as applied to section 1(1) of the 1945 Act has two parts, with different effects, depending on whether the “fault” of the defendant or the claimant is being considered. It has been said that the definition of “fault” therefore has two “limbs”, one concerning the “fault” of the defendant and one concerning that of the claimant. (Footnote: ¹⁷ )

In relation to the defendant’s “fault” the first part of the definition applies, so that “fault” means acts or omissions which give rise to a liability in tort. The present case is not concerned with that “limb”, but with the second part of the definition, which is referable to the claimant’s conduct. In the case of a claimant, the word “fault” means “negligence, breach of statutory duty or other act or omission” which would at common law and but for the 1945 Act have given rise to the complete defence of “contributory negligence” to the claim being made by the claimant. Before the 1945 Act came into force, a claimant whose failure to take care for his own safety was a cause of his injury was guilty of “contributory negligence”. That had the consequence that he could not sue the defendant, even though the defendant had been in breach of duty himself. (Footnote: ¹⁸ )

In Standard Chartered Bank v Pakistan Shipping Corporation, (Footnote: ¹⁹ ) Lord Hoffmann said that the conclusion that a claimant cannot be at “fault” within the meaning of the 1945 Act unless his conduct gave rise to a defence of “contributory negligence” at common law was in accordance with the purpose of the 1945 Act. He said that purpose was to relieve claimants whose actions would previously have failed. The 1945 Act’s purpose was not to reduce the damages which would have previously have been awarded against defendants. He said this was clear from the opening sentence of section 1(1) of the 1945 Act. With respect, I must agree.

Therefore, when deciding whether, as a matter of principle, the defence of contributory negligence is available to meet a claim against a claimant for the torts of assault and battery, it is necessary to ask: at common law was there a defence of “contributory negligence” to a claim against a defendant for damages for those torts? There are some English authorities since the 1945 Act which have considered this point, but, as I will attempt to show, they are not entirely satisfactory. Thus, as is so often the case in the common law, one has to delve into legal history to find the answer to a modern day question. There is also considerable assistance on this question in both Australian and New Zealand authorities and there has been an exhaustive discussion of the issue by Brian Childs in the Northern Ireland Legal Quarterly. (Footnote: ²⁰ )

Assault (acts creating a fear in another of immediate unlawful violence) and battery (force causing direct and immediate injury to another) are, strictly speaking, examples of the tort of trespass to the person. (Footnote: ²¹ ) They are “intentional torts” in the sense that the defendant must intend to do that which causes the damage. They are actionable per se, that is without the need to prove damage. It is noteworthy that acts done or words said reckless as to whether they cause damage also give rise to an “intentional tort”, as in the case of deceit. (Footnote: ²² ) This seems to me to answer Mr Reddiford’s argument that “contributory negligence” might have been a defence if the assault was only reckless as opposed to intentional. If “contributory negligence” was no defence at common law for the tort of deceit, which can be founded on a statement made reckless as to whether damage was caused (as opposed to a statement intending to cause damage), then logically it cannot be a defence in the case of a “reckless” assault or battery, which has always been characterised as an “intentional tort”. In this context, “intentional” must embrace “recklessness”. This also accords with the criminal law, where an assault is any act by which a person intentionally or recklessly causes another to apprehend immediate unlawful violence and a battery is an act by a person which intentionally or recklessly causes the complainant to sustain unlawful personal violence. (Footnote: ²³ )

At common law “contributory negligence” was, in general, not a defence in the case of an intentional tort. Thus Lord Lindley said in Quinn v Leatham (Footnote: ²⁴ ) that “the intention to injure the plaintiff negatives all excuses”. Mr Reddiford was not able to cite any cases before the 1945 Act was passed in which “contributory negligence” had provided a defence to a claim for damages for the torts of assault or battery. On the other hand, Mr Chippinhall referred us to three old cases where it appears that the court expressly or inferentially refused to admit a defence of “contributory negligence” as an answer to the tort of trespass to the person, assault or battery. (Footnote: ²⁵ ) There are no examples in Bullen & Leake’s Precedents of Pleadings (3 ^rd Ed 1868) of a plea of “contributory negligence” to a claim for the tort of trespass to the person, as opposed to such a plea to a claim based on negligence (ie. “an action on the case”).

There are other strong indications in the opposite direction. Three are noted in the speech of Lord Rodger of Earlsferry in Standard Chartered Bank v Pakistan Shipping Corporation, which had held that in relation to a fraudulent misrepresentation there was no common law defence of contributory negligence, so that a defendant could not use the 1945 Act to reduce the damages it was liable to pay the claimant for the tort of deceit by relying on the “fault” of the claimant. Lord Rodger, in agreement with Lord Hoffmann, (Footnote: ²⁶ ) accepted the conclusion of Mummery J in Alliance & Leicester Building Society v Edgestop Ltd (Footnote: ²⁷ ) that in the case of fraudulent misrepresentation there was no common law defence of contributory negligence. In support of this Lord Rodger first noted that in 1882 Sir Frederick Pollock had drafted a Civil Wrongs Bill for the government of India, with the aim of setting out a codified, if simplified, version of English tort law. Clause 64 of the proposed code was, as Lord Rodger described it, “drafted in such a way that it would operate as a defence only in the case of negligence by the defendant or someone for whose negligence he was answerable”. In other words, the defence of “contributory negligence” was not to be available to a defendant who had committed an intentional tort. Secondly, Lord Rodger pointed out that in Pollock’s own book Law of Torts (1887), the author had dealt with the defence of “contributory negligence” in the chapter on negligence and had stated that the defence would not apply in the case of intentional harm.

Thirdly, Lord Rodger referred to an “authoritative essay” by the celebrated American jurist Francis Hermann Bohlen, (Footnote: ²⁸ ) written in 1908 and reprinted in his Studies in the Law of Torts (1926). At pages 528-9 Bohlen remarked:

“If the defendant’s wrong be intentional, only consent, express or necessarily implied from the circumstances, will bar recovery…the unanimous current of decision is that when the defendant’s wrong is something more than mere negligence- when it involves an intent to cause harm-contributory negligence is no defense”.

Lastly, I note that in Professor Glanville William’s famous book Joint Torts and Contributory Negligence, published in 1951, he stated that for torts of “intentional wrongdoing” contributory negligence was no defence at common law. (Footnote: ²⁹ ) He also expressed the view that the 1945 Act itself would not apply to torts of wrongful intention, “for in such torts contributory negligence was no defence at common law”. (Footnote: ³⁰ ) Glanville Williams suggested that there was a policy reason for the exclusion of the defence in the case of intentional torts; it was a “penal provision aimed at repressing conduct flagrantly wrongful”. But, he also suggested, it was the “…result of the ordinary human feeling that the defendant’s wrongful intention so outweighs the [claimant’s] wrongful negligence as to efface it altogether”. (Footnote: ³¹ )

This position is to be contrasted with the opposite situation where a claimant alleges that the defendant has been negligent, but the defendant alleges there has been contributory intention on the part of a claimant. Thus in Reeves v Commissioner of Police (Footnote: ³² ) it was held that such intention (in that case the suicide of the son of the claimant) could be “fault” for the purposes of section 1(1) and 4 of the 1945 Act.

In a case in the Supreme Court of Victoria, Horkin v North Melbourne Football Club Social Club (Footnote: ³³ ) , Brooking J conducted an historical survey of the law relating to “contributory negligence” in the context of a claim for damages for the tort of battery. The claimant had become drunk at a football club bar after a match. Brooking J concluded that the claimant was a trespasser by the time that he was removed by employees of the club. He found that in the course of the claimant’s removal he was “the victim of a battery for which the defendant is in law responsible”. Brooking J also found that the plaintiff had failed to take “reasonable care for his own safety” and that this failure contributed to his injury. The judge then had to consider whether the defendant club could rely on the Australian Wrongs Act 1958 (which in the relevant respects is in the same terms as the 1945 Act) to reduce its liability to the claimant. Brooking J said that this depended on whether “at common law the defendant to an action for battery could set up contributory negligence [as a defence to the claim]”. (Footnote: ³⁴ ) After an exhaustive survey of both old and modern Australian, English and New Zealand authorities and text books on tort and pleading practice, he concluded that contributory negligence was not at common law available as a defence to an action for battery. (Footnote: ³⁵ )

Mr Reddiford relied on English cases since the 1945 Act to support the proposition that, when a claim for damages for the tort of assault was made, a defendant could rely on the 1945 Act to reduce the amount of compensatory damages to which a claimant was entitled, provided it was established that the claimant had been guilty of “fault” in some way. The first of these cases is Lane v Holloway, (Footnote: ³⁶ ) a decision of the Court of Appeal. The claimant, a man of 64, insulted the wife of the defendant, a man aged 23. An argument between the two men ensued. Then the claimant (64) threw a punch at the defendant (23), who thereupon hit the claimant in the eye very hard, causing a severe wound. The claimant sued for damages for assault. The defendant relied on the defences of ex turpi causa no oritur action and volenti non fit injuria and also claimed that the claimant’s injuries were caused or contributed to by the claimant’s fault. The county court judge held that the actions of the claimant had, to a substantial extent, brought the injuries upon himself and so reduced the damages very considerably.

On appeal, Lord Denning MR considered whether the claimant’s insult to the defendant’s wife and his initial attempt to punch the defendant could amount to “provocation” so as reduce damages or extinguish the claim. Relying on a decision of the High Court of Australia, Fontin v Katapodis, (Footnote: ³⁷ ) Lord Denning held that 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”. (Footnote: ³⁸ ) He did not specifically refer to the defence of contributory negligence or the 1945 Act.

Salmon LJ said that he “entirely rejected” the argument that the compensatory damages to be awarded to a claimant who had suffered a civil wrong should be reduced because the claimant had “behaved badly”. (Footnote: ³⁹ ) In relation to the argument based on the 1945 Act, Salmon LJ said:

“As Winn LJ pointed out in the course of the argument, if the [claimant] 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”. (Footnote: ⁴⁰ )

That passage is a little opaque. But to my mind, the Lord Justice was not making any general statement on the question of whether, before the 1945 Act, the defence of contributory negligence was available to defeat a claim for damages for an intentional wrong such as assault. Indeed, he appears to say that would be a “somewhat surprising proposition”.

Winn LJ simply said that there was, in his view, nothing which could constitute “fault” on the part of the claimant that could come within section 1(1) of the 1945 Act. So he also made no general statement on the applicability of the 1945 Act in cases concerning the torts of assault and battery.

The next case to consider this issue was also a decision of the Court of Appeal: Murphy v Culhane. (Footnote: ⁴¹ ) It was an interlocutory appeal. The allegation was that the claimant’s husband, Mr Murphy, agreed with others to attack the defendant, Mr Culhane. There was an affray during which Mr Culhane struck Mr Murphy on the head with a plank and killed him. Mr Culhane subsequently pleaded guilty to the manslaughter of Mr Murphy. Mr Murphy’s widow sued Mr Culhane for damages under the Fatal Accident Acts. The claim pleaded that Mrs Murphy would rely on Mr Culhane’s guilty plea of manslaughter. In his defence, Mr Culhane admitted that he had assaulted the deceased and that his death had resulted. But he had also pleaded that the death was the result of a “criminal affray”. He relied on the defences of ex turpi causa non oritor actio; and volenti non fit injuria. He also asserted that the deceased’s death was caused partly by his own fault because he had initiated the criminal affray.

The question on appeal was whether Mrs Murphy was entitled to enter judgment on the pleadings as they stood. In the Court of Appeal Lord Denning MR gave the only reasoned judgment. He dealt first with the question of whether damages in an action for assault could be reduced because the claimant was himself guilty of provocation. He referred to the High Court of Australia’s decision in Fontin v Katapodis (Footnote: ⁴² ) and Lane v Holloway. (Footnote: ⁴³ ) He acknowledged those cases “seemed to show” that provocation could not reduce pecuniary damages in a claim for assault. Lord Denning then distinguished them, saying that they were cases where the conduct of the injured man was “trivial” and that of the defendant “savage”. He said that those cases should not apply where the injured man, by his own conduct, can fairly be regarded as partly responsible for the damage he suffered. He said he wished to repeat what he had said in his judgment in Gray v Barr, namely : (Footnote: ⁴⁴ )

“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”.

Lord Denning said that was the principle he “preferred” rather than the earlier cases. That statement does not appear to be directed towards the effect of the 1945 Act. (Footnote: ⁴⁵ )

Lord Denning then expressly considered the 1945 Act (Footnote: ⁴⁶ ) and said that even if the widow was entitled to damages they might fall to be reduced under section 1(1) and 4 of that Act because “the death of her husband might be the result partly of his own fault and partly the default of the defendant”. He said that on this point he must explain a sentence in Gray v Barr. He continued:

“…[there] 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, or alternatively was not such that he should be regarded as responsible in any degree for the damage. So also in Lane v Holloway [1968] 1 QB 379, as Winn LJ pointed out at p.393. But in the present case the conduct of the deceased man may well have been such as to make him liable in tort”.

In the light of the analysis of the definition of “fault” in the 1945 Act as explained in the subsequent House of Lords decisions in Reeves v Commissioner of Police and Standard Chartered Bank v Pakistan Shipping Corporation, the quoted remarks of Lord Denning are problematical. Lord Denning assumed that when considering whether the claimant was at “fault for the purposes of the 1945 Act, one had to ask whether he would have been liable in tort or “responsible” for the damage. With respect, Lord Denning did not, therefore, ask himself the correct question when considering whether the widow’s damages could be reduced by virtue of section 1 of the 1945 Act. The proper approach, based on the accepted interpretation of “fault” in section 4 of the 1945 Act is to ask whether that conduct by a claimant could have given rise to a defence of contributory negligence at common law. (Footnote: ⁴⁷ ) Lord Denning does not deal with that question either when quoting from his judgment in Gray v Barr or when making his more general statement about the applicability of the 1945 Act to the facts of Murphy v Culhane.

Therefore, given the two subsequent House of Lords’ cases of Reeves v Commissioner of Police and Standard Chartered Bank v Pakistan National Shipping Corporation I think that the remarks of Lord Denning cannot be regarded as authority for the proposition that, as a matter of law, the compensatory damages for the tort of assault can be reduced by the application of the 1945 Act. I note that in the Standard Chartered Bank case, Lord Rodger of Earlsferry referred, at [45], to Lord Denning’s statements in Murphy v Culhane. Lord Rodger said that Lord Denning’s statements “would appear to conflict with the view that contributory negligence had never been a defence open to a defendant who had intended to harm the plaintiff”. Lord Rodger went on to point out that the Culhane case was distinguishable from the Standard Chartered Bank case and that there were other arguments available to the defendant in the Culhane case. However Lord Rodger said “I should wish to reserve my opinion as to whether this particular observation of Lord Denning MR should be regarded as sound”. In my respectful view, the particular observation of Lord Denning is not sound law. Furthermore, I would say that they cannot stand with the authoritative statements of the House of Lords in the Reeves case and the Standard Chartered Bank case and are not binding on this court.

Mr Reddiford also relied upon the unreported decision of this court in Barnes v Nayer. (Footnote: ⁴⁸ ) The defendant to the action, Mr Nayer, had violently assaulted the wife of the claimant, Mr Barnes and he had thereby unlawfully killed her. The claimant claimed damages which he said were caused by that assault. The defendant had pleaded that he and his family were subject to a prolonged and serious course of abuse, insult and assaults by the deceased and her family, who lived next door. It was common ground that there was a fight in which the two families were involved and in which it was said by the defendant that the deceased had kicked the son of the defendant. He alleged that he was so provoked that he picked up a machete and struck the deceased. She died as a result of those wounds.

The district registrar had granted summary judgment to the claimant. That decision had been upheld by the judge. The Court of Appeal considered whether there were arguable defences to the claim. (Footnote: ⁴⁹ ) Having considered the cases on these three possible defences, including Lane v Holloway, Gray v Barr, and Murphy v Culhane, May LJ continued: (Footnote: ⁵⁰ )

“ In my judgment the conclusion of law which it is possible to draw from those authorities are these. First, if in a claim for damages for assault it is possible on the facts properly to say ex turpi or volenti non fit injuria, then probably the two defences described shortly by those Latin tags could be relied on. In so far as contributory negligence is concerned, prima facie I can see no reason why, again given the facts, a defendant to a claim for damages for assault cannot rely upon the Law Reform (Contributory Negligence) Act 1945”.

May LJ went on to hold, on the facts, that there was no arguable case that the claimant, or his deceased wife or family had been at “fault” within the meaning of the 1945 Act. Lincoln J agreed.

There are, with respect, several problems with this judgment. First, it does not appear that the court considered whether, in principle, a defence of contributory negligence would have been available to a defendant in an action for an intentional wrong such as assault. If it had done so and it had applied the dictum of Lord Lindley in Quinn v Leatham quoted above, it would have had to conclude that it was not. If so, then on the correct construction of section 1(1) of the 1945 Act, the damages awarded to a claimant in a case of assault could not be reduced because of the “fault” on the part of the claimant. Secondly, the reliance on the three cases referred to above is of doubtful assistance in the light of the two House of Lords’ decisions since they were decided. Thirdly, the judgment was on an interlocutory matter. Fourthly, the court held that the defence would fail on the facts. Lastly, the judgment was given by a two judge court. In my view it is not binding authority for the proposition that the 1945 Act can be used to reduce compensatory damages for the tort of assault.

The next case in this series is another unreported interlocutory decision by two Lords Justices sitting in this court: Malcolm v Walsh. (Footnote: ⁵¹ ) In that case the County Court judge had held that the defendant had intentionally assaulted the claimant with a golf club, resulting in the loss of an eye. The defendant had asserted that the claimant had assaulted him. The County Court judge had dismissed that assertion. However, the defendant appealed on the ground that the claimant’s claim should be reduced on the grounds of his contributory negligence. In the Court of Appeal counsel for the claimant conceded that, as Henry LJ put it, “…given appropriate circumstances contributory negligence can be a partial defence to an action for battery”. For that proposition he cited Lane v Holloway, Murphy v Culhane and Barnes v Nayer. After a review of the facts, Henry LJ came to the conclusion that the judge was correct to have concluded that the defendant/respondent was solely responsible for the claimant losing his eye. Thorpe LJ agreed.

That case did not review the principles involved. If the three cases on which counsel’s concession was based are themselves flawed as I have suggested that they are, then Malcolm v Walsh cannot itself assist Mr Reddiford.

The judge referred to the decision of Hughes J in Millward v Oxfordshire County Council, (Footnote: ⁵² ) in which a teacher’s claim for damages were reduced by 25% because it was said she was partly responsible for the attack on her by her use of intemperate words and behaviour. However, that case does not assist Mr Reddiford. The claimant had suffered an assault by a youth in a remedial school, but her claim was against the local authority, and the basis of the claim was breach of a duty of care, not the intentional tort of assault. Therefore the decision does not deal with the current problem.

There are two New Zealand cases to which I should refer. In Hoebergen v Koppens, (Footnote: ⁵³ ) a decision of the Supreme Court in Hamilton, Moller J held that in an action for assault where it was established that the claimant had provoked the defendant to act by use of abusive language, that provocation was a ground for refusing exemplary or aggravated damages but it could not reduce compensatory damages. Moller J considered both Fontin v Katapodis and Lane v Holloway. He concluded that Salmon and Winn LJJ in the latter case “seem to have accepted that the defence [of contributory negligence] is available in [a tort committed intentionally] but also felt that the facts on their own case could not support a finding in the defendant’s favour”. (Footnote: ⁵⁴ ) Moller J held, on the facts of his case that the damages should be reduced in accordance with section 3(1) of the New Zealand Contributory Negligence Act.

In Dellabarca v Northern Storemen and Packers Union (Footnote: ⁵⁵ ) in the High Court of New Zealand at Aukland, Smellie J held that contributory negligence was not available as a defence to an intentional tort. In that case the torts were inducement of breach of contract and conspiracy. Smellie J stated that he therefore could not follow the decision of Moller J in Hoebergen.

So far as the English text books are concerned, there is little discussion and the conclusions are cautious. Halsbury’s Laws (Footnote: ⁵⁶ ) says that a defendant “may have” a partial defence to a claim for assault or battery by way of contributory negligence. Clerk & Lindsell on Torts (Footnote: ⁵⁷ ) states that the “balance of authority” now suggested that contributory negligence is available in a claim of trespass to the person. It cites Murphy v Culhane in support of this statement but notes the caution of Lord Rodger in the Standard Chartered Bank case. Winfield and Jolowicz on Tort (Footnote: ⁵⁸ ) is particularly tentative, saying that, after some hesitation the courts, “now seem to accept that the Act may be applicable to cases of intentional trespass to the person, given sufficiently serious conduct on the part of the claimant”. The same cases are referred to again. Salmond and Heuston on the Law of Torts (Footnote: ⁵⁹ ) is also tentative, saying that contributory negligence is “generally assumed to be a defence” to assault and battery but there are cases going both ways. Street on Torts (Footnote: ⁶⁰ ) states that contributory negligence is available as a defence in a battery action but it gives no authority for the proposition.

Mr Redifford also submitted that the fact that section 11(1) of the Torts (Interference with Goods) Act 1977 (Footnote: ⁶¹ ) expressly excludes contributory negligence as a defence to intentional trespass to goods supports his argument that such a defence is available in the case of trespass to the person. I disagree. The 1977 Act abolished the tort of detinue but retained other existing torts, particularly conversion, concerning goods. It had to make the position on contributory negligence clear. At common law there may have been some doubt on whether “contributory negligence” was a defence to the tort of conversion, (Footnote: ⁶² ) which can be the result of unintentional, negligent or deliberate acts by the defendant. But there was no doubt that there was no such defence in relation to intentional trespass to goods. Section 11(1) merely makes the position plain.

The Co-op is only entitled to assert that Miss Pritchard was “contributorily negligent” so that any damages to which she is entitled must be reduced if, at common law, there was a defence of “contributory negligence” to a claim against a defendant for damages for the torts of assault or battery. There is no case before the 1945 Act which holds that there was such a defence in the case of an “intentional tort” such as assault and battery. There are many pointers indicating that there was no such defence.

Insofar as there are cases since the 1945 Act that suggest that the Act can be used to reduce damages awarded for the torts of assault or battery in a case where it is found that the claimant was “contributorily negligent” they are unsatisfactory and cannot stand with statements of principle made in two subsequent House of Lords decisions. I would conclude that the 1945 Act cannot, in principle, be used to reduce damages in cases where claims are based on assault and battery, despite the remarks in such cases as Lane v Holloway and Murphy v Culhane, which I would say are not binding on this court. Moreover, it seems to me that such a conclusion is in keeping with the purpose of the 1945 Act, as set out in section 1(1), which was to relieve claimants whose actions would previously have failed, not to reduce the damages which would have previously have been awarded to claimants.

Therefore, albeit for different reasons to those expressed by the judge, I would hold that he was correct to conclude that, as a matter of law, the Co-op cannot rely on contributory negligence to defeat Miss Pritchard’s claim or to reduce the damages otherwise to be awarded to Miss Pritchard.

Because the judge had concluded, as a matter of law that contributory negligence was irrelevant, he made no findings of fact about the conduct of Miss Pritchard in that regard. However, Mr Reddiford submitted that, on the basis of the judge’s findings of fact in [56],[57] and [63] of his judgment, the judge should have concluded that Miss Pritchard was guilty of contributory fault. Mr Reddiford argued that the test was correctly set out in Clerk & Lindsell at paragraph 3-54: viz. was the conduct of the claimant sufficiently grave in proportion to the wrongdoing of the defendant to amount to (1) “fault” on his part; and (2) an effective cause of the ensuing injury to the claimant.

Assuming I am wrong in my conclusion on Issue One and also that this statement in Clerk & Lindsell does represent the correct test, I would conclude that the Co-op fails to satisfy it. Miss Pritchard did swear and shout at Mr Wilkinson; she was abusive and she did bite him at one stage. But, in my view, given the findings of the judge in paragraphs [56] to [59], particularly his conclusions that when Mr Wilkinson assaulted Miss Pritchard he was under no immediate threat of violence from her, she was not violent and her behaviour did not amount to a breach of the peace, then her conduct was not sufficiently grave in proportion to the wrongdoing of Mr Wilkinson, as found by the judge, to constitute “fault” on her part in the sense of failing to take care for her own safety. In saying this I bear in mind the finding of the judge at [63] that there was a degree of “provocation” by Miss Pritchard. Furthermore, given the finding that Mr Wilkinson was under no immediate threat of violence from Miss Pritchard when he assaulted her, it is difficult to see how any words or actions on her part could be an effective cause of the ensuing injury to her.

Accordingly, I would dismiss this part of the appeal, both in principle and on the facts.

The key issue on causation was: what was the effect of the assault on Miss Pritchard’s mental health and, in particular, (a) did it cause the agoraphobia that manifested itself after 11 October 2003 and (b) how did it affect her long term ability to undertake work. The evidence of Dr Brown, which the judge rejected as unsatisfactory, was that Miss Pritchard suffered from pre-existing psychiatric disorders, including anxiety and depression, but not agoraphobia. Dr Brown’s view was that the consequence of the assault was that Miss Pritchard developed a much more disabling psychiatric state, including agoraphobia, so that she was likely to remain psychiatrically disabled even if given treatment and was unlikely ever to return to work.

Dr Aylard’s opinion, expressed in his reports before the trial, was that, even without the assault, the pre-existing anxiety and depression of Miss Pritchard would have progressed and rendered her as psychiatrically unwell as she in fact became. In his oral evidence, which he gave after the evidence of fact, he said how quickly that state occurred would depend on how distressed Miss Pritchard was immediately before the assault occurred. If she was calm, then, in his view, the period before she reached the same state that she was actually in after the assault would have been more than 1-2 years. However if, as was her evidence, she was in a distressed and angry state immediately before the assault, then the period before she reached the same state that she was actually in after the assault would have been 1-2 years. (Footnote: ⁶³ ) Dr Aylard also maintained, in cross-examination, that Miss Pritchard’s agoraphobia which only manifested itself after the assault was rooted in childhood experiences and her pre-existing depression and anxiety. (Footnote: ⁶⁴ ) He said that Miss Pritchard’s agoraphobia occurred because she was suffering from panic disorder, which had many factors which influenced it, including genetics, childhood experiences, depression and anxiety and an event such as an assault. (Footnote: ⁶⁵ )

At [50] of his judgment, the judge made findings that Miss Pritchard was feeling physically unwell and was emotionally fragile and at risk of becoming increasingly upset. In my view, although the judge does not make a specific finding in [56]-[59] on Miss Pritchard’s state of mind immediately before the assault, the clear implication of his findings is that he thought that she was distressed and angry. Yet the judge said, at [60], that he was “..not persuaded that the assault resulted in a short period of acceleration”, ie. that the effect of the assault was to accelerate, by only 1 – 2 years, a psychiatric state that Miss Pritchard would have reached even if there had been no assault. The judge gives three reasons for this conclusion. First, Miss Pritchard’s medical history; and secondly, her ability to overcome past problems and return to work and do so industriously. Thirdly, the judge said, at [60], that Dr Aylard “ was not able to say that, but for the assault on 11 October 2003, Debbie Pritchard would have been suffering from agoraphobia within two years”.

Mr Chippindall submitted that the judge was entitled to reach that conclusion for two main reasons. First, because Dr Aylard had not stated clearly in his first two reports that Miss Pritchard would have exhibited agoraphobia in any event, even if there had been on assault. Mr Chippinhall submitted that this thesis had only become developed in Dr Aylard’s oral evidence at the trial. Secondly, he emphasised Miss Pritchard’s medical history, which showed that in the past she had overcome her psychiatric difficulties and gone back to work.

I have examined closely Dr Aylard’s reports, the experts’ joint statement and all the relevant passages in Dr Aylard’s oral evidence at the trial. In my view it is evident from paragraph 15 of the Joint Report that it was Dr Aylard’s view that even if the court accepted Miss Pritchard’s evidence in full, she would have ended up in a similar psychiatric situation within 1 to 2 years “with increasing periods of ill health due to anxiety and depression”. I appreciate that he did not focus there on the appearance of agoraphobia. But both experts agreed that this condition only manifested itself after the assault. It is clear from Dr Aylard’s oral evidence that he was expressing the view that one manifestation of anxiety and depression is the agoraphobia that was exhibited after the assault. In my view Dr Aylard was indeed saying clearly that, even if the assault had not occurred, Miss Pritchard would have been suffering from agoraphobia within one to two years, if, as the judge found to be the case, she was angry and irritated before the assault actually took place. Dr Aylard also stated that, in expressing that view, he took account of her medical history, stretching back to her childhood, which included a history of depression, anxiety and panic attacks.

Looked at overall, I have concluded that the judge was not entitled to reach the conclusion that he expressed in [60] of the judgment. Having rejected entirely the evidence of Dr Brown and generally accepted the evidence of Dr Aylard, the judge would have to give good reasons if he was to reject a particular view of Dr Aylard on the effect of the assault on the psychiatric condition of Miss Pritchard, given her medical history to date. The judge does not give any proper reasons for departing from Dr Aylard’s views and Mr Chippinhall has not persuaded me that there are any which might be given. Accordingly the judge should have accepted the opinion of Dr Aylard on this issue.

Therefore, as the judge found as a fact that Miss Pritchard was angry and irritated before the assault on 11 October 2003, the judge should have concluded that the effect of the assault was that it did accelerate, by between 1 to 2 years, a psychiatric state, including agoraphobia, that Miss Pritchard would have reached in any event even if there had been no assault.

The conclusion that the judge ought to have accepted Dr Aylard’s evidence must mean that there has to be a reduction in the figures for (a) general damages for pain, suffering and distress; (b) loss of future earnings; (c) care costs; and (d) damages for future handicap in the open labour market. We were told by counsel that it was likely that all figures could be agreed once our judgments were handed down. I hope that remains the case.

For the reasons I have set out above, I would reject the appeal on the “contributory negligence” issue, but allow it on the “causation” issue.

I have read the judgment of Smith LJ. It may well be that when juries were left to award damages in civil actions for assault or battery they made a reduction if they thought there was some “fault” on the side of the claimant, even if there was no warrant for doing so in law, either before or after the 1945 Act. I am also prepared to accept Smith LJ’s analysis of why judges in more recent cases have felt able to make an apportionment in assault or battery cases, particularly in the light of the comments of Lord Denning MR in Gray v Barr. (Footnote: ⁶⁶ ) If those judges purported to so on the basis of the 1945 Act, they were, with respect, in error. I have seen nothing to suggest that any other basis for apportionment is available at common law. Whether apportionment should be available in cases of battery where the claimant has been “at fault” in the colloquial sense and that “fault” is one of the causes of his injury is a question of policy. I agree with Smith LJ that this would involve a change in the law that would require the intervention of Parliament.

I have read the judgment of Aikens LJ in draft and am grateful to him for his exposition of the facts and his thorough examination of the authorities in relation to the issue of contributory negligence. In respect of the ‘causation’ issue, I am wholly in agreement with his reasoning and conclusion.

I have found the contributory negligence issue more difficult. I am, however, in complete agreement with the analysis of Aikens LJ and accept that, under the Law Reform (Contributory Negligence) Act 1945, contributory negligence or fault is not available as a partial defence to an intentional tort such as battery.

Section 1(1) of the Act is headed “Apportionment of liability in cases of contributory negligence” and provides:

“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.”

Reading those words on their own and giving the word ‘fault’ its ordinary or colloquial meaning, one might think that a claimant who provoked a defendant to an act of violence against him (either by words or actions) was ‘at fault’ and that it was Parliament’s intention that, if it was held that he had suffered injury as the result partly of his own fault and partly as the defendant’s fault, his damages could be reduced to reflect the justice and equity of the case. However, that would be to ignore the definition of fault in the Act and the way that that definition has been construed by the House of Lords.

“Fault” is defined in section 4 of the Act, as “negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would apart from this Act, give rise to the defence of contributory negligence”. It has been held by the House of Lords in Reeves v Commissioner of the Police of the Metropolis [2000] 1 A.C. 360 and Standard Chartered Bank v Pakistan Shipping Corporation [2003] 2 A.C. 959 (following Pritchard J in Rowe v Turner Hopkins & Partners [1980] 2 N.Z.L.R 550 and first approved in English law by O’Connor LJ in Forsikringsaktieselskapet Vesta v Butcher [1989] A.C. 852), that the definition of fault comprises two limbs of which only the second applies to the conduct or fault of the claimant. ‘Fault’ as applied to a claimant is limited to acts or omissions which would, but for the Act, have given rise to the defence of contributory negligence. In Reeves, it was held that deliberate, intentional conduct could amount to contributory negligence. But because of the rule (as identified by Aikens LJ) that contributory negligence could not, before the Act, provide a defence to an intentional tort such as battery, a claimant who deliberately behaves badly by provocative or intimidatory conduct or even by initiating violence, is entitled to recover in full from the defendant who retaliates by laying hostile hands upon him.

I reach this conclusion with regret because I think that apportionment ought to be available to a defendant who has committed the tort of battery where the claimant has, by his misconduct, contributed to the happening of the incident, for example by provocative speech or behaviour. I think that there ought to be some apportionment in the present case. I think that Miss Pritchard’s conduct was provocative, verging on the intimidatory. I entirely accept that Mr Wilkinson’s conduct was unlawful; it went beyond what he was entitled to do. But I do not think that he intended to harm Miss Pritchard, only to remove her. In all the circumstances, I think it would be just and equitable if her damages were to be reduced by one third. However, I do not think that the law permits me so to hold.

As Aikens LJ has noted, the authoritative textbooks on Tort are either vague or tentative about the availability of the defence of contributory negligence to the tort of battery. In the light of Aikens LJ’s analysis, that seems surprising. But what I think must have happened is that the germ of the idea that contributory negligence was available was sown, possibly by Murphy v Culhane [1977] QB 94, where it appears that Lord Denning’s approach to the question of contributory negligence, at page 99A, was that all that mattered was that the claimant or deceased could properly be said to have been at fault and that his injury had been caused partly by his own fault and partly by the fault of the defendant. There is no reference there for the need for the fault of the claimant or deceased to have been such as would, before the Act, have amounted to the defence of contributory negligence. This case then seems to have been followed, without much, if any, legal analysis, in cases such as Barnes v Nayer, The Times, December 19 1986 and Ward v Chief Constable of the Royal Ulster Constabulary [2000] NI 543. These cases have given rise to the appearance of a line of authority. They may well have been followed in other cases without much examination because both sides have been pleased to do so, recognising the good sense of apportionment being available. Not only does apportionment enable justice to be done but there might also be good forensic reasons for wanting it to be available – half a loaf being better than no bread.

A good example of a case in which the parties agreed that the defence was available is Parmer v Big Security Company Limited & others [2008] EWHC 1414 (QB). There, the claimant was involved in some violence inside a public house. He was being removed from the premises when, just outside the doorway, the defendant, a doorman, pushed him against a railing. The claimant fell over and was quite badly injured. The judge, Wyn Williams J, rejected the defendant’s plea of lawful self-defence. But he held that the claimant was partly responsible for what had happened. His violence and that of the defendant had been part of a continuous incident. Counsel agreed between them that it was open to the judge to apportion the damages. He did so, reducing the claimant’s damages by 30%. This case is now cited in the fourth supplement to the 19^th edition of Clerk & Lindsell on Torts as additional authority for the proposition (mentioned by Aikens LJ) that:

“The balance of authority now suggests that contributory negligence is available in a claim of trespass to the person or other tort concerned with intentional harm to the person.”

However, it is clear from the report that there was no legal argument about the availability of apportionment.

It seems to me that the line of cases in which judges have reduced compensatory damages in cases of battery or other intentional torts have probably resulted from an approach to section 1 of the 1945 Act which failed to take into account the section 4 definition of ‘fault’ as applied to a claimant. Now that the true construction of section 4 has been explained in Reeves and Standard Chartered Bank, it seems that these other cases were wrongly decided. I regret that I have come to that conclusion because, as I have said, I think that justice requires that apportionment should be available in cases of battery where the claimant has been at fault in the colloquial sense and that fault is one of the causes of his injury. But I do not think that that is the law and I think that a change to that effect would require the intervention of Parliament.

I agree that the appeal fails on the contributory negligence point but succeeds on the causation point, for the reasons given by Aikens LJ.