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Contributory negligence as a defence to battery
Published online by Cambridge University Press: 02 January 2018
Extract
At one time it would have been possible to say with firm confidence that contributory negligence was never a defence to battery except, perhaps when the conduct of the plaintiff was so clearly the cause of the harm that had befallen him that it could be treated as contributory intent.
In more recent years, however, a number of qualifications to any such terse summary have appeared and somewhat surprising conflicts of opinion between various common law jurisdictions have arisen, both on the principal question and a number of associated problems.
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- Copyright © Society of Legal Scholars 1984
References
1. It is assumed that battery is an intentional tort. See Letang v Coojer [1965] 1 QB 232; Horkin v North Melbourne Football Club [1983] VR 153 at 157–158; Winfield & Jolowicz, Tort (12th edn) p 54; Fleming, Torts (6th edn) pp 23–24; Prosser, Torts (4th edn) pp 40–41; Glanville Williams Joint Torts and Contributory Negligence, p 198. Salmond & Heuston, Torts (18th edn) p 114, Street, Torts (7th edn) p 18 and Clerk & Lindsell, Torts (15th edn) p 658 think there may be negligent battery. If this is so, some policy arguments for excluding contributory negligence as a defence to battery would have limited validity in relation to such a tort. See, post, nn 72 and 73. See also Trindade, ‘Some Curiosities of Negligent Trespass’ (1974) 20 ICLQ 706 at 726–730.
2. Williams, Joint Torts pp 197–202 and 318; Prosser, Torts (4th edn) p 426; and works cited in Horkin v North Melbourne Football Club [1983] VR 153 at 159–162.
3. P 426, n 95.
4. Joint Torts, p 200. But for a possible difference between the two in this field see post, nn 8 and 9. An example of what now might he regarded as causation barring an action is Dale v Wood (1822) 7 Moore 33 where the plaintiff got off his horse and raised his stick at the defendant. Clerk & Lindsell, Torts (15 edn) p 294 cite this as an assault justifying a battery. The same principle underlies the defence of self-defence. See Chaplain of Gray's Inn Case (1400) YB 2 Hen IV fo 8 p1 40.
5. [1977] QB 94.
6. Spenser [1977] CLJ at 244. But Lord Denning at 98 in citing his own dictum in Gray v Ban [1971] 2 QB at 569 to the effect that a court in awarding damages could take into account matters of mitigation as well as aggravation seemed to be saying that causation might go in mere reduction of damages.
7. Clerk & Lindsell, Torts (15 edn) pp 101–102.
8. (1693) Comb 218.
9. (1747) Buller NP 16. Contra Ball C in Hegarty v Shine (1878) 4 LR Ir 288 at 294, R v Coney (1882) 8 QBD 534 at 549.
10. Fleming, Torts (5th edn) p 80. Deleted from 6th edn at p 76. But see National Coal Board v England [1954] AC 403 at 428, per Lord Asquith of Bishopstone.
11. Section 1 (1).
14. Section 4.
13. See post on this interpretation nn 35–56.
14. [1977] QB at 98–99.
15. (1962) 108 CLR 177.
16. [1968] 1 QB 379.
17. It has been suggested that Lane v Holloway in which an elderly man ‘full of beer’ was savagely attacked by the defendant forty years his junior was distinguished out of existence in Murphy v Culhane. See Landry v Patterson (1978) 93 DLR (3d) 345 at 347, per Mackinnon ACJO; Spenser [1977] CLJ 242 at 244–245; but there does seem to be a real difference which may fairly be reflected in the law between the unpremeditated quarrel which erupted in Lane v Holloway and the ‘wicked plot’ and deliberate expedition to do violence in Murphy v Culhane.
18. [1968] 1 QB 379 at 388. The courts have shown great reluctance to extend battery to medicinal cases. See Chatterton v Gerson [1981] 1 AII ER 257 at 265; Hills v Potter [1984] 1 WLR 641 at 653.
19. A parallel might be McKew v Holland and Hannen and Cubitts [1969] 3 AII ER 1621 where the folly of the pursuer in making a dangerous climb with an injured leg, resulting in a serious fall, broke the chain of causation from the defenders who had been responsible for the original leg injury.
20. See post, nn 57–73, for this.
21. (1962) 108 CLR 177.
22. Lane v Holloway [1968] 1 QB 379.
23. Hoebergen v Koppens [1974] 2 NZLR 597.
24. Landry v Patterson (1978) 93 DLR (3d) 345; Check v Andrews Hotel Co (1974) 56 DLR (3d) 364.
25. See the judgments of Hall and Matas JJA in Landry v Patterson for an examination of the cases.
26. (1978) 93 DLR (3d) 345 at pp 347–350.
27. See [1977] QB at 98 where, after mcntioning Lane v Holloway and Fontin v Katapodis he went on to cite his own dictum in Gray v Barr [1971] 2 QB at 569 to the erect that a court could take account in awarding damages both of matters of aggravation and mitigation. The dead man's conduct in Murphy v Culhane went well beyond what would ordinarily be called provocation.
28. [1974] 2 NZLR 597 at 605, line 18 et seq. This was supported by Munkman, Damages for Personal Injury and Death (4th edn) p 41 (see now 6th edn, p 38) which Moller J cited at 601 to the effect that provocation ‘as such’ could not reduce compensatory damages but might form a component of contributory negligence which, in that author's view, could do so.
29. Ibid, at 599–600.
30. Ibid, 603.
31. Ibid, at 605, line 18 et seq.
32. Ibid, at 605, line 5 et seq. This comes close to Prosser's ‘contributory intent.’ See ante, n 3.
33. See Brooking J in Horkin v North Melbourne Football Club [1983] VR at 162–163.
34. See works cited by Brooking J, ibid, at 159–162.
35. Ante, nn 11 and 12.
36. See, post, nn 57–73.
37. [1977] QB at 99.
38. Horkin v North Melbourne Football Club [1983] VR at 158.
39. Hoebergen v Koppens [1974] 2 NZLR at 601.
40. Ibid.
41. Joint Torts, p 318.
42. 12th edn, p 150 and n 98. Also Fleming Torts (6th edn) p 254, n I who thinks this the better view, the other being possible but implausible.
43. [1956] VLR 612 at 622.
44. (1974) 10 SASR 299 at 316–317.
45. [1966] 2 QB 370 at 378.
46. [1970] VR 705 at 726.
47. [1983] VR 153 at 158.
48. [1977] QB 94 at 99.
49. [1974] 2 NZLR 597 at 601 and 605–606.
50. (1974) 10 SASR 299 at 324 and 327.
51. Ibid, at 317.
54. Murphy v Culhane, ante, n 37.
53. Horkin v North Melbourne Football Club, ante, n 38.
54. Hoebergen v Koppns, ante, n 39.
55. Ibid, ante, n 40.
56. The Long Title of the 1945 Act is: An Act to amend the law relating to contributory negligence and for purposes connected therewith.
57. Ante, n 47.
58. [1983] VR at 159–161.
59. (1886) 8 ALT 15.
60. Buller, Nisi Prius (7th edn, 1817); Espinasse, Nisi Prius Evidence (2nd edn, 1825); Chitty, Pleadings (7th edn 1844); Selwyn, Nisi Prius (11th edn, 1845): Stephens, Law of Nisi Priw (1842); Bullen and Leake Pleadings (2nd edn, 1863); Roscoe, Nisi Prius Evidence (13th edn, 1875).
61. Underhill, Torts (4th edn, 1884); Pollock, Torts (6th edn, 1901); Clerk and Lindsell, Torts (4th edn, 1906); Addison, Torts (8th edn 1906); Halsbury Laws of England (1st edn, 1913); Salmond, Torts (1st edn, 1907).
62. Joint Torts, pp 198–199.
63. (1974) 10 SASR 299 at 317.
64. [1983] VR at 161 citing Morison, Sharwood, Phegan and Sappideen Cases on Torts, 5th edn, p 205.
65. By assigning a wide scope to the intended consequences of battery Brooking J limits whatever may be the unintended consequences. He does not indicate what these may be: nervous shock, loss of earnings, medical expenses? Also Professor Glanville Williams' sole authority was Butterfield v Forrester (1809) II East 60 where the intentional wrongdoing - obstructing the highway - was neither directed specifically at the plaintiff nor to the applying of unlawful force to any person hence the case seems remote from battery. If, however. Brooking J means that account is to be taken exclusively of that consequence which completes the cause of action then this in effect excludes contributory negligence as a defence in battery unless, as Salmond & Heuston, Clerk & Lindsell and Street on Torts believe, (see, ante, n 1) there may be negligent battery.
66. Street, Foundations of Legal Liability (1906) Vol I, p 181; Prosser, Torts (3rd edn) p 436; American Jurisprudence (2nd edn) Vol 6, para 153; Restatement Torts (2nd edn) para 481.
67. (1877) 46 Iowa 132; (1912) 28 LQR 125–126.
68. [1983] VR at 162.
69. Ibid, at 163 citing Barley v Paror (1979) Australian Current Law 356.
70. Salmond & Heuston, Torts (18th edn) p 120; Winfield & Jolowicz, Tort (11th edn) p 135; Munkman, Damages (5th edn) p 43 (see now 6th edn, p 38) (to which might be added Street, Torts (7th edn) p 69) would allow the defence. Luntz, Damages 1,820; Luntz and others, Torts: Cases and Commentary 11.16.19; Morison, Sharwood and others Cases on Torts (5th edn), pp 203–208 and 767 would not admit the defence at common law but are not dogmatic on the eKect of apportionment legislation. Higgins, Elements of Torts in Australia would exclude it both at common law and under statute. Fleming, Torts (5th edn) pp 265–267 and Glanville Williams, Joint Torts, pp 198, 202–204 and 318 would exclude it both at common law and under legislation for intended injury. Clerk & Lindsell Torts (14th edn) para 102 was to the same effect but para 104 would only have excluded it in the case a wholly unreasonable assault. See now 15th edn, paras 1–124, n 21 which follows Williams and Fleming but 1–126 follows the former para 104.
71. [1983] VR at 165 citing Alford v Magee (1952) 85 CLR 437 at 455 and 460–461; Chapman v Hearse (1961) 106 CLR 112 at 123–124 Anderson v Eric Anderson (1965) 114 CLR 20 at 43–44; Evans v Parbeny (1961) 92 WN (NSW) 146 at 149–150; Caswell v Powell Duffry [1940] AC 152 at 164–166. In England also it is no longer wholly a matter of causation. See Winfield & Jolowicz, Tort (12th edn) pp 158–159; Street, Torts (7th edn) p 479; Salmond & Heuston, Torts (18th edn) p 494. See The Miraflores and The Abadesa [1967] 1 AC 826 at 845 so Brooking J.'s reasoning is equally applicable here.
72. Now Torts (4th edn) p 426.
73. Joint Torts, p 198. If, as Clerk & Lindsell, Salmond & Heuston and Street on Torts believe, there may be negligent battery, the reasoning in Joint Torts and in Prosser would be of little force in excluding contributory negligence in such a case.
74. Ante, nn 24–26.
75. (1954) 2 DLR 278 at 286.
76. (1981) 119 DLR (3d) 254; see Crocker ‘Apportionment of Liability and the Intentional Torts: The Time is Right for Change’ (1982) 7 Dal LJ 172.
77. Ante, nn 24–26.
78. Murphy v Culhane, ante, n 5.
79. Matthew v Ollerton; Boulter v Clark, ante, nn 8 and 9.
80. Fontin v Katapodis, ante, n 15; Lane v Holloway, ante, n 16; Hoebergen v Koppens, ante, n 23; Landry v Patterson, ante, n 24.
81. Murphy v Culhane, ante, n 5; contra, Landty v Patterson, ante, n 24.
82. Winter v Bennett, ante, n 43; Venning v Chin, ante, n 44; Quinn v Burch Bros, ante, n 45; James v Duncan, ante, n 46; Horkin v North Melbourne Football Club, ante, n 47; Williams Joint Torts, ante, n 41; Winfield & Jolowicz ante, n 42; Fleming, Torts, ibid; contra, Murphy v Culhane, ante, n 5; Hoebergen v Koppens, ante, n 49; Venning v Chin, ante, n 50.
83. Horkin v North Melbourne Football Club, ante, nn 57–73 and authorities there cited especially Prosser on Torts and Williams, Joint Torts; contra, Hoebergen v Koppens, ante, n 23; Barley v Paroz, ante, n 69; and semble, Lane v Holloway, ante, n 30.
84. Horkin v North Melbourne Football Club, ante, nn 62–65 citing Williams Joint Torts and Venning v Chin, ante, n 63.
85. See, ante, n 73.