PERTH BARRISTERS: PROVOCATION AND THE MITIGATION OF DAMAGES IN THE TORT OF ASSAULT.
Ask you what provocation I have had?
The strong antipathy of good to bad.
Alexander Pope-Epilogue to the Satires.
PERTH BARRISTERS Notwithstanding the title to this essay, it would be more appropriate to discuss the defence of provocation, insofar as it
may have an effect on damages, in the context of the tort of battery. This is because, whereas the tort of assault has been defined as an intentional offer of force or violence to the person of another, the tort of battery has been defined as an act of the defendant which directly and either intentionally or negligently causes some physical contact with the person of the plaintiff without the plaintiff’s consent.1
Having regard to these definitions, all the decisions which will be referred to herein deal with instances of battery and not assault, yet the tort in question is referred to as an assault. Consequently because the term “assault” has acquired a generic meaning and is commonly used to include battery I propose to do likewise in this essay.
Furthermore, in determining the extent to which provocation may have an effect upon the quantum of damages awarded in civil claims for assault, I have adopted a comparative approach and the law on this topic in the United Kingdom, Canada, New Zealand as well as Australia will be examined.
PERTH BARRISTERS deals with the history of the various forms of trespass to the person which in modern times may take three forms, namely the tort of battery, the tort of assault and the tort of false imprisonment.
According to Fleming, trespass emerged in the thirteenth century as a remedy for obvious forcible wrongs involving a breach of the peace. At first, the laws of crime and tort were closely intermingled in the remedy and although this may have changed somewhat as the law developed, the “semi-criminal ”nature of the action of trespass has become firmly rooted in our jurisprudence.
Whereas trespass became the remedy for all forcible, direct and immediate injury, whether to the person or to goods or land, the action on the case was later developed as a remedy for injuries which did not accord with the profile of trespass. By the eighteenth century, the distinction between trespass and case was essentially whether the injury had been caused directly or indirectly as a result of the wrongdoer’s force. Furthermore, although trespass was actionable per se, damage had to be alleged and proved in case.
Later development linked actions on the case with negligent harm and trespass with intentional wrongs although it eventually became permissible to rely on either trespass or case if the injury, though immediate, was not wilful. This conferred significant procedural advantages upon the claimant the nature of which need not detain us here.
The Judicature Act 1873 finally abolished the forms of action and it is now permissible in all common law systems to plead merely the facts and to allow the evidence led at trial to reveal whether a cause of action exists or not.
THE POSITION IN THE UNITED KINGDOM
PERTH BARRISTERS: The leading case in England on the question of whether provocation on the part of the plaintiff can be used to reduce the ultimate award of damages in claims for assault is the decision of the Court of Appeal in Lane v Holloway3, a case which involved an attack upon a “cantankerous”, 64 year old man by a much younger, 28 year old defendant.
The defence was based on the two legal maxims ex turpi causa non oritur actio and volenti non fit injuria, both of which (correctly, it is submitted) were rejected by the trial court and by their Lordships on appeal. The trial judge had, however, held that the plaintiff had, to a substantial extent, brought the injury upon himself, firstly by insulting the defendant’s wife, secondly by challenging the defendant to a fight and thirdly by striking the first blow. He accordingly reduced the award of damages to £75 on the basis that provocation could be used to reduce damages.
Lord Denning MR held (at 387) that although the trial judge had before him cases from England, New Zealand and Canada which supported the proposition that provocation could be used to reduce damages, these cases had all been considered before the decision in the High Court of Australia of Fontin v Katapodis.4. Believing that the Australian High Court should be his guide, Lord Denning held that although provocation could be used to wipe out exemplary or aggravated damages, it could not be used to reduce the actual figure of pecuniary compensation.
In his judgment Salmon L.J. (at 390) said the following:
I entirely reject the contention that because a plaintiff who has suffered a civil wrong has behaved badly, this is a matter which the court may take into account when awarding him compensatory damages for physical injuries which he has sustained as the result of the wrong which has been unlawfully inflicted upon him.
I would unhesitatingly come to that view without any authority at all. I cannot see how logically or on any principle of law the fact that the plaintiff has behaved rather badly and is a cantankerous old man can be even material when considering what is the proper compensation for the physical injury which he has suffered.
He then went on to accept what had been said in the High Court of Australia in Fontin’s case and found that earlier English and Commonwealth decisions to the contrary had been wrongly decided.
Reference was made in Lane’s case to the case of Fraser v Berkeley 5 and was relied upon by the defendant’s counsel in support of the proposition that damages may be reduced by provocation. In Fraser, the defendant had taken exception to caustic criticism of his book by the plaintiff and had severely assaulted the plaintiff with his fists and a horsewhip. In his decision Lord Abinger said the following:
The law I think would be an unwise law, if it did not make allowance for human infirmities; and if a person commit violence at a time when he is smarting under immediate provocation, this is a matter of mitigation.
Because the defendant in Fraser had not been acting under immediate provocation at the time of the assault (which took place some three days after the alleged libel) the plaintiff succeeded in an award of 100 pounds. What is curious about this case, however, is that at the end of his judgment Lord Abinger, almost anecdotally, said the following:
I really think that this assault was carried to a very inconsiderate length, and that if an author is to go and give a beating to a publisher who has offended him, two or three blows with a horsewhip ought to be quite enough to satisfy his irritated feelings.(emphasis added).
It is no wonder that Salmon L.J. in his judgment (at 391) said that:
Apparently in 1836 it was considered reasonable for an educated gentleman to express his disapproval of a criticism of his book or of himself by horse-whipping the critic, but only, it would seem, if the horse-whipping was limited to two or three strokes. It is perhaps fortunate that those ideas no longer prevail.
A note in the 1967 Law Quarterly Review 6 has the following to say about Lane’s case:
A case may be of interest because it raises a novel point of law, or because of the style in which it is presented; both of these are true of Lane v. Holloway  3 WLR 1003 as it concerns a legal problem which has never hitherto been conclusively answered in this country, and, at the same time, the judgment of Salmon L.J. is so lively that it will probably find a place in most legal anthologies in the future.
One would have thought that after the clear exposition of the law in Lane, it would have been settled in the United Kingdom that provocation could be taken into account to mitigate only punitive (exemplary) damages and not compensatory damages. Bad behaviour on the part of the plaintiff was regarded as “irrelevant” when considering damages in cases of assault.
Some eight years later, however, with barely so much as a backward glance at its earlier decision in Lane, the English Court of Appeal in a unanimous judgment read for the Court by Lord Denning effectively turned the decision in Lane on its head in the case of Murphy v. Culhane. 7The facts of that case, briefly, were that the assault in question had occurred during a criminal affray which the plaintiff’s deceased husband had initiated for the purpose of assaulting the defendant.
In his judgment Lord Denning, after referring to Fontin and Lane, at 535 said:
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. So much so that the defendant could fairly be regarded as solely responsible for the damage done. I do not think they can or should be applied where the injured man, by his own conduct, can fairly be regarded as partly responsible for the damages he suffered. So far as general principle is concerned, I would like to repeat what I said in the later case of Gray v. Barr: 8
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 rather than the earlier cases.
This dictum by Lord Denning has been described by a Canadian judge9 as “virtually a complete repudiation” of the court’s position in Lane. It is submitted that that proposition is correct. The judgments in Lane are irreconcilable with what was later said by Lord Denning in Murphy.
THE POSITION IN NEW ZEALAND
PERTH BARRISTERS In Green v Costello 10 the Supreme Court of New Zealand decided that in civil claims for assault, provocation on the part of the plaintiff could be taken into account in mitigation of all damages awarded to the plaintiff. In reaching this conclusion the Chief Justice had regard, inter alia, to Fraser’s case and the Canadian decision of Griggs v Southside Hotel Ltd 11and (at 1013) it was said by His Honour that:
I think I should hold that provocation, even though it does not amount to a threat to the defendant’s physical security, may nevertheless go in mitigation of damages.
The decision in Green’s case remained the law in New Zealand for thirteen years until the decision of the Supreme Court of New Zealand in Hoebergen v Koppens.12 The plaintiff had been assaulted by the defendant who had punched the plaintiff in the face. On appeal it was contended that if the circumstances showed that the plaintiff provoked the attack, the damages otherwise due to him should be reduced having regard to that provocation.
In his judgment, Moller J referred to the decision in Green but noted that since that time the cases of Fontin v Katapodis and Lane v Holloway had been decided. After a careful consideration of these decisions it was decided by his Honour (at 600) to follow them and, almost without any further comment, to disregard the previous decision in Green.
The current position in New Zealand after Hoebergen’s case, therefore, is that although awards of exemplary damages in civil claims of assault may be reduced or prevented by provocation on the part of the defendant, compensatory damages are not mitigated by provocation.
THE POSITION IN AUSTRALIA
PERTH BARRISTERS In Australia the question of whether provocation may have an effect on the quantum of damages awarded in civil claims for damages was answered when the High Court handed down its unanimous decision in Fontin v Katapodis13 in 1962.
In that case, the plaintiff, during an altercation with the defendant, struck the defendant with a T square and was about to strike him again when the defendant threw an off-cut of louvre glass at the plaintiff, severely injuring him. The trial judge had reduced an award of 2850 pounds to 2000 pounds by reason of the fact that the assault had been provoked by the defendant’s conduct.
On appeal the High Court decided unanimously that compensatory damages could not be mitigated by the presence of provocation on the part of a claimant in cases of assault and battery. McTiernan J., after reviewing various authorities in Australia, the United Kingdom and Canada said (at 184) that:
It would seem that the principle on which damages of all kinds are reduced or mitigated because of provocation in a case of assault and battery is that the plaintiff brought the trespass on himself. It is, as it were, a contribution charged to him on account of his own fault. On the other hand, it is said that the law provides a remedy for any damage or loss occasioned by a wrongful act and, therefore, if provocation brings the defendant to do any act in excess of lawful self-defense which results in personal injury and economic loss to the plaintiff, he is entitled to just and adequate damages, and to mitigate or reduce actual or compensatory damages is to deprive the plaintiff pro tanto of a legal right. This would seem to place actual or compensatory damages for assault and battery on the same footing as damages for personal injury caused by negligence. I am inclined to the view that there ought to be no reduction for actual or compensatory damages for provocation in the case of assault and battery. It seems to me to be correct in principle to mitigate or reduce damages of the nature of exemplary damages if the plaintiff has provoked the assault and battery complained of.
The other judgment of note in Fontin was delivered by Owen J who (at187) said the following:
In an action for assault, as in many other cases of tort, the conduct and motives of the other party may be taken into account either to
aggravate or mitigate damages. In a proper case the damages recoverable are not limited to compensation for the loss sustained but may include exemplary or punitive damages as, for example, where the defendant has acted in a high-handed fashion or with malice. But the rule by which the defendant in an action in which exemplary damages are recoverable is entitled to show that the plaintiff’s own conduct was responsible for the commission of the tortious act and to use this fact to mitigate damage has no application to damages awarded by way of compensation. It operates only to prevent the award of exemplary damages or to reduce the amount of such damages which, but for the provocation, would have been awarded.
The decision in Fontin was followed without further comment in the unanimous judgment of the High Court in Lamb v Cotogno 14 where (at 13) it was stated that:
With exemplary damages, unlike compensatory damages, provocation may operate to prevent an award or to reduce the amount
which might otherwise be awarded. It follows that the law in Australia on this topic is settled. This is not the position in Canada.
THE “BEFUDDLED” CANADIAN EXPERIENCE
PERTH BARRISTERS Until the decisions in Fontin and Lane, the decisions of the various Provinces in Canada either reduced (or were prepared to reduce) compensatory damages in civil claims for assault where there had been provocation on the part of the plaintiff.
In the Prince Edward Island Supreme Court decision of Collins v. Keenan 15 the trial judge, in awarding the plaintiff damages in an amount of $40 stated that had it not been for the “reprehensible” conduct of the plaintiff he would have been disposed to award him a “considerable sum for damages”. The Alberta Supreme Court in Evans v Bradburn 16 awarded an amount of only $50 for general damages “because of the provocation”. The Ontario High Court in the case of Griggs v Southside Hotel Ltd and German 17 relying on Fraser v Berkeley, mitigated what was clearly an award of compensatory damages because of provocation on the part of the plaintiff. In Hartlen v Chaddock 18 the Nova Scotia Supreme Court, in assessing the general damages awarded to the plaintiff in the amount of $75, took into account the provocative conduct of the plaintiff who struck the first blow, challenged the defendant to a fight and called him an abusive name.
The last pre-Fontin and Lane decision of note is that of the Ontario Court of Appeal in Miska v Sivec 19 where it was argued on the defendant’s behalf that the trial judge had erred in refusing to charge the jury on the effect of provocation in mitigation of damages. Although the Appeal Court had no doubt that where there was evidence of provocation a jury should be instructed to consider it in assessing damages for assault, it was held that in the instant case there was no evidence of provocation and the trial judge had been correct in his refusal.
Then in 1974, the Manitoba Court of Appeal delivered judgment in the case of Check v Andrews Hotel Co. Ltd. 20The decision of the majority was written by Matas JA who held that the reduction of compensatory damages on the ground of provocation would conflict with Fontin and Lane. The learned Judge also referred to authorities from some of the American jurisdictions which were to the effect that compensatory damages in civil claims for assault were not subject to mitigation by proof of provocation or malice. He then reviewed the Canadian authorities, particularly the decision of the Manitoba Court of Appeal of Agar v Canning 21 which had confirmed the reduction by one third of the amount of compensatory damages awarded by the lower court on account of the fact that the defendant had “acted on provocation”, found that the decision in Fontin had not been brought to the attention either of the trial judge in that matter or the Court of Appeal and then said:
Force was used in the instant case beyond what was reasonably necessary to carry out the eviction of the plaintiff and the termination of his verbal abuse. The degree of force used by the defendant was not a justifiable reaction to plaintiff’s conduct. Since no allowance was made for aggravated or exemplary damages, plaintiff’s conduct cannot be invoked to bring about a reduction in the amount of the award. I am of the view that, under all the circumstances in the case at bar, there are no grounds to reduce the damages awarded to plaintiff .
The minority judgment in Check was written by Hall JA who, after referring to Fontin and Lane, found them to be contrary to the authorities in various jurisdictions of Canada. After reviewing those authorities he found the decision in Lane, although persuasive, was not so compelling as to justify a departure from the “well established” principle in Canada that provocation by the plaintiff in an assault case should be considered in assessing damages.
In my view, the principle of considering and where appropriate reducing damages for provocation in an assault case is compatible with contemporary notions of justice in Canada. In the present case, the plaintiff’s own conduct brought about the assault and the injuries complained of, albeit the conduct of the defendant exceeded that which the occasion demanded.
It is submitted that the minority judgment in Check is juridically more acceptable. There is no doubt that the overwhelming preponderance of Canadian authority before that time was in favour of the proposition that compensatory damages fall to be reduced in claims for assault where there had been provocation by the plaintiff. The majority judgment of the Court in Check disregarded those authorities, including one of its own decisions, in order to follow Fontin and it is no wonder that, as we shall see, it has not found favour in other Canadian jurisdictions.
In 1977, the Ontario Court of Appeal in Shaw v Gorter 22 referred a matter back to the lower court to have the damages assessed by a jury in a new trial where the trial judge had, in his charge to the jury, stated that whereas provocation could not justify an assault, it was a factor which might be used to mitigate or reduce “the amount of damages which would otherwise be awarded.” The point taken on appeal by the plaintiff was that, in assessing damages for assault, provocation could only be taken into account in assessing punitive damages and not general damages. The Court chose to follow the decisions in Lane which both counsel apparently believed to be reasonable.
What is remarkable about the decision in Shaw’s case is that although the fact that the trial judge had not had his attention drawn to Lane was decried (at 52) as a case where a Judge had suffered “…from the lack of assistance of counsel….”, the decision in Check was not even referred to although it had been decided some three years earlier!
About a year after Shaw, the Ontario Court of Appeal handed down its unanimous decision in Landry v Patterson.23 Speaking for the Court, MacKinnon ACJO (at 347) noted that the judgment of the English Court of Appeal in Murphy v Culhane had so distinguished Lane’s case “as to make it virtually meaningless as a precedent for the principle it appeared to stand for (sic).” The Court then considered whether Shaw v Gorter had been compromised by the decision in Murphy and after referring to Check’s case and finding that Lane v Holloway had not been overruled concluded as follows:
As I said earlier, counsel did not seek to distinguish Shaw v Gorter, supra, and we are bound by that decision which is in line with most modern authorities. It may be that the time has come for the Court of final resort in this country to resolve the issue so that there will be unanimity in the way in which the Courts in the various Provinces deal with the problem.
The need for the issue to be resolved once and for all in Canada by a Court of “final resort” became even more compelling when the Newfoundland Court of Appeal decided Hurley v Moore. 24The judgment of the Court was delivered by Steele J.A. who found as a fact that there had been provocation on the part of the plaintiff prior to the assault in question. The learned Judge then stated that the traditional Canadian position was that provocation, while not a defence to an action for assault, ought to be considered in mitigation of damages. It is clear that the reference to damages was to all damages including compensatory damages and not just punitive damages.
Steele J.A. continued by stating that Lane v Holloway had “greatly influenced Canadian jurisprudence on the subject” to the extent that the Provinces of Manitoba and Ontario had rejected the traditional Canadian approach in favour of the view that, in cases of assault, provocation will be taken into account to reduce punitive damages but not compensatory damages. The decision of Murphy v Culhane had, however, virtually repudiated Lane v Holloway.
The decision of the Ontario Court of Appeal in Landry v Patterson was then considered by the learned Judge who, in light of the “disparaging” comments in that case about Lane as authority after the decision in Murphy, stated that “…it is not at all clear why the Court felt so committed to Shaw v Garter.” He then went on to find that the decision in Lane, which had been relied upon by the Manitoba Court of Appeal for its decision in Check and by the Ontario Court of Appeal for its decision in Shaw, had been disavowed by the English Court of Appeal in Murphy and “….the law in Canada on the point remains in a befuddled state.”
Steele JA then referred to the 1993 decision of the Supreme Court of Canada in Hall v Herbert, 25a case in which the plaintiff, who had been injured in a car accident, had sued the defendant, the owner of the motor vehicle in question because he had allowed the plaintiff, his passenger, to drive the vehicle after both of them had been drinking and the faculties of the plaintiff had been impaired by drink. The tort relied upon by the plaintiff for a remedy was the tort of negligence. Writing for the majority of that Court, Justice McLachlin held that where the conduct of an injured party contributed to the injury, the compensation awarded could be reduced to the extent of that party’s contributory negligence so that although contributory negligence could never be a complete defence, if established it could reduce the award of damages.
Steele JA then stated that the traditional Canadian position in regard to provocation represented an attempt to achieve fairness to all parties who were to blame thereby contributing to the damages and (at p. 682 ) said:
“Provocation must not be confused with self-defence, a different concept, and one that is a defence to a civil action for assault and battery. Provocation is not a defence. The only question is whether provocation may be considered in mitigation of general (compensatory or pecuniary) damages, it being acknowledged that provocation should be considered in mitigation of exemplary or punitive damages. On the authorities mentioned, I am satisfied that the traditional Canadian position that evidence of provocation ought to be considered in mitigation in assessing damages is good law. Lane v Holloway has been discredited and there is no recent authoritative Canadian position on the point.”
By preferring the “reasonableness” of the traditional Canadian approach, which he believed was subscribed to by the English Court of Appeal in Murphy, Steele JA adopted as “sound law” the view that although provocation is not a defence to a tort action for assault, in assessing (all) damages provocation should be considered in mitigation. Then, in order to “achieve fairness as between parties” the learned Judge reduced the award of $25,000 made by the trial Judge to $20,000 “on account of the provocation by the respondent in the first instance.”
In reaching this decision Steele JA was mindful of the fact that in her judgment in Hall v Herbert McLachlin J had (at 165) stated the following:
The jury awarded him $10,000 for punitive damages. While the verdict was affirmed, Weinrib doubts that it would be followed in the Commonwealth, particularly in view of the decision in the English Court of Appeal which accepted the argument that wrongful conduct (provocation) could reduce exemplary or punitive damages, but not compensatory damages: Lane v. Holloway, supra. I am persuaded by this argument. ( emphasis added)
In what can only be described as an egg-dance, Steele JA (at 682) attempted to explain away what appeared to be the wholehearted endorsement of the decision in Lane by the Supreme Court of Canada as follows:
“As I read her (McLachlin J’s) remarks, she is merely referring to one of several examples of a case where a certain type of damages may violate the rule against profiting from wrongdoing. Her reference to Professor Weinrib’s comment that the American case would not be followed in the Commonwealth in view of Lane v. Holloway just assumes the correctness of that decision. There is no reference whatsoever to the subsequent decision of the English Court of Appeal in Murphy v Culhane in 1976. Moreover, Hall v Herbert was primarily concerned with the application or role of the ex turpi causa maxim and the duty of care in a negligence case. McLachlin J in writing the judgment for the majority of the court did not approve of Lane v Holloway but it was, no doubt, a convenient example of a case illustrating her point that a wrongdoer must not profit from crime. It remains to be seen what position the Supreme Court adopts on the question of whether provocation is a factor to be considered in assessing compensatory damages.”
Now there is no doubt that the dictum of Justice McLachlin referred to above was purely obiter, but, notwithstanding the view of Steele J.A. that the dictum is just an assumption of the correctness of the decision in Lane, it is submitted that it amounts to an unequivocal endorsement of that decision and must be regarded by any inferior court as an indication of the thinking of the Canadian Supreme Court. With respect to Steele J.A., his judgment in Hurley appears more than robust in distinguishing, as it did, what was said by McLachlin J, albeit obiter, in Hall v Herbert.
In any event, the law in Canada on this topic is indeed muddled with provinces such as Ontario and Manitoba following Lane and Fontin and others such as Newfoundland taking the opposite, “traditional” Canadian approach that although provocation is not a defence to a tort action for assault, it should be considered in mitigation of all damages and not merely punitive damages.
PERTH BARRISTERS The decision in Fontin by the High Court of Australia had a profound influence on the approach adopted by other common law jurisdictions as to whether provocation on the part of the plaintiff should be taken into account in determining the quantum of damages to be awarded in civil claims for assault.
Fontin was relied upon in its entirety by the English Court of Appeal in Lane v Holloway, with Salmon LJ (at 392) describing the Court in Fontin as an “an exceptionally strong court”. Lane has, however, been sidelined by Murphy v. Culhane. What was said by Lord Denning in that case is simply not reconcilable with his earlier judgement in Lane where he had stated unequivocally at 387 that although “…Provocation by the plaintiff can properly be used to take away any element of aggravation…” it could not “…reduce the real damages”. In Murphy Lord Denning sought to distinguish between cases where the conduct of the plaintiff had been “trivial” from those where the plaintiff, by his own conduct, could “fairly be regarded as partly responsible for the damage he suffered.” This, with respect, is language more in keeping with the apportionment of damages on the basis of contributory negligence, than with provocation (which can never be a defence) on the part of the plaintiff in claims for assault.
In New Zealand, Fontin caused the Supreme Court to overrule its own decision in Green v Costello in the case of Hoebergen v Koppens, but in the same case consideration was given (at 601) to whether the provisions of the Contributory Negligence Act 1947 could apply when the plaintiff’s claim against the defendant arose out of an assault, a question which the court found was “remarkably free of authority.” The court (at 603) concluded that “…in a proper case, it is open to a defendant in an action based on assault to call in aid the provisions of the Contributory Negligence Act”. After finding on the facts that it was appropriate to do so and after deducting an item of special damages which should not have been included in the award, the court reduced the balance of the damages awarded by the Magistrate in the lower court by 15%.
In Canada, as we have seen, the effect of Fontin was that the Courts in provinces such as Ontario and Manitoba departed from the “traditional” Canadian approach by deciding that in claims for assault, provocation on the part of the claimant could be taken into account in assessing punitive but not compensatory damages. The result is that the law on the topic in the various Provinces is at sixes and sevens and will remain so until finally settled by the Court of final resort in Canada as suggested by MacKinnon ACJO in Landry v Patterson.
Which of the two approaches should be adopted by the Supreme Court of Canada when it is finally seised of the matter as appears to be inevitable?
It is submitted that a refusal to permit compensatory damages from being mitigated by provocation may result in an injustice to the defendant in cases where the provocation has been extreme. This is the only rational explanation for the volte face by Lord Denning in Murphy. He could not accept the fact that in a case where there had been a “wicked plot” to beat up the defendant, there could be no mitigation of damages despite the provocation.
One can easily imagine far worse instances of provocation which, although not amounting to a situation which would enable the defendant to rely on the defence of self defence, may nevertheless go a long way to explaining the assault on an abusive plaintiff. Instances of racial vilification or provocative physical abuse such as a slap in the face come to mind.26 In such cases the fact that punitive damages are reduced or even excluded altogether would be cold comfort to a maligned defendant, particularly in those jurisdictions such as the United Kingdom where it is not competent to award punitive damages in cases of assault.27
If damages for negligence are capable of being apportioned (although in most jurisdictions legislation was required to effect this), then there can be no valid juridical reason why damages awarded in claims for assault should not fall to be reduced where the assault was occasioned by provocation on the part of the plaintiff. Although McTiernan J in Fontin (at 184) seemed to have difficulty with this proposition, he did not furnish reasons for this.
It is not suggested that the decision of the Supreme Court of New Zealand in Hoebergen should be followed as the existing legislation catering for apportionment of damages in the various Australian jurisdictions has been tailored to reduce damages where there has been contributory negligence on the part of the plaintiff and provocative conduct will seldom amount to negligence.28
What will be required to achieve this end is either a change of heart on the part of the High Court when next it is seised with the topic (which is unlikely) or appropriate legislation will have to be passed in the various Australian jurisdictions. It is submitted that this would result in a fairer and more equitable dispensation to defendants who have reacted to provocation on the part of plaintiffs.
To conclude, I can do no better than repeat what was said (at 684) by Steele J.A. in Hurley v Moore:
This (the reduction of damages) is hardly a mathematical formula but the intention is unconcealed: to achieve fairness as between parties, one of whom inflicted the injuries and the other who, in part, brought it on him or herself.
1 Halsbury’s Laws of England (Fourth Edition) Butterworths Volume 45 1985 at paras 310 and 311
See also Brazier: The Law of Torts (Ninth Edition) Butterworths 1993 at 24.
Clerk and Lindsell on Torts (Seventeenth Edition) Sweet and Maxwell at 585, 590.
Fleming: The Law of Torts (Eighth Edition) the Law Book Company 1992 at 24,25
2 Fleming (op. Cit.) 16.
3 Lane v Holloway  1 QB 379.
4 Fontin v Katapodis (1962) 108 CLR 177.
5 Fraser v Berkeley (1836) 7 C.&P. 621.
6 Vol. 83 (1967) 470.
7 Murphy v Culhane  3 All ER 533.
8 Gray v Barr  2 All ER 949 at 957.
9 See Hurley v. Moore 107 DLR (4th) 664 at 679.
10 Green v Costello  NZLR 1010.
11 Griggs V Southside Hotel Ltd  4 DLR 73.
- Hoebergen v Koppens  2 NZLR 597.
- Fontin v Katapodis  108 CLR 177. In an article entitled “Provocation in Tort Liability-A Time for Reassessment” published
in the 1968 Queensland University of Technology Law Journal (Volume 4) and only drawn to the author’s attention after this article had been written, S.K.N. Blay cogently argues that the rationale for the decision in Fontin v Katapodis may be flawed.
14 Lamb v Cotogno  164 CLR 1.
15 Collins v Keenan 18 DLR 795.
16 Evans v Bradburn 25 DLR 611.
17 Griggs v Southside Hotel Ltd and German  4 DLR 73.
18 Hartlen v Chaddock 11 DLR (2d) 705.
19 Miska v Sivec 18 DLR (2d) 363.
20 Check v Andrews Hotel Co. Ltd. 56 DLR (3d) 364.
21 Agar v Canning W.W.R. 384 (Man. C.A.).
22 Shaw v Gorter 77 DLR (3d) 50.
23 Landry v Patterson 93 DLR (3d) 345.
24 Hurley v Moore 107 DLR (4th) 664.
- Hall v Herbert 101 DLR (4th) 129.
- For an example of what could only be described as extreme provocation see the bizarre facts of the case of Downham v Bellette (1986) Australian Torts Reports 80-039
27 See Rookes v. Barnard  A.C. 1129.
28 See the judgment of Salmon L J in Lane v Holloway (supra) at 392.