In Co-operative Group (CWS) Ltd v Pritchard [2011] EWCA Civ 329, [2011] All ER(D) 312 (Mar), the Court of Appeal considered whether contributory negligence could be raised as a defence to a claim for damages for the torts of assault and battery.

Judge Bromilow had found that the defendant had used a degree of provocation towards her assailant, to whom she was also abusive. He concluded that it was not open to him to make a finding of contributory negligence against her under the Law Reform (Contributory Negligence) Act 1945 as he was bound by Lane v Holloway [1968] 1 QB 379. The Co-op accepted the findings of fact but appealed, arguing that contributory negligence could succeed as a defence in a claim for assault or battery, certainly where there was a reckless infliction of injury.

Sections 1 (1), (2) and section 4 of the act apply. Section 1 provides: ‘1. Apportionment of liability in case of contributory negligence. (i) Where any person suffers damage as the result 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.

'Section 4 provides: "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.’

Lord Justice Aikens gave the leading judgment. He referred to the speech of Lord Hoffmann in Reeves v Commissioner of Police [1999] UKHL 35, [2000] 1 AC 360 in which he held that the definition of ‘fault’ in section 4 of the act has two parts with different effects, depending on whether the ‘fault’ of the defendant or the claimant is being considered. Before the 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’, with the consequence that he could not sue the defendant, even though the defendant had been in breach of duty himself.

In Standard Chartered Bank v Pakistan Shipping Corporation [2002] UKHL 43, [2003] 1 AC 959, Lord Hoffmann held that this position at common law was in accordance with the purpose of the act. Accordingly, Lord Justice Aikens held that the correct question for the court to ask was whether at common law there was a defence of ‘contributory negligence’ to a claim against a defendant for the torts of assault or battery.

Assault and battery are examples of the tort of trespass to the person and are ‘intentional torts’ actionable per se. Lord Justice Aikens traced the history of the common law on this topic through the textbooks and the authorities. He referred in particular to the dicta of Lord Lindley in Quinn v Leatham [1901] AC 495 at 537 that ‘the intention to injure the plaintiff negatives all excuses’. No cases were cited before the act in which the defence of contributory negligence had been upheld as a defence to a claim in damages for these torts.

In Standard Chartered Bank, Lord Rodger held that in the case of fraudulent misrepresentation, there was no common law defence of contributory negligence. In contrast, in Reeves, it was held that where a defendant has been negligent but alleges there has been contributory intention on the part of the claimant, such intention could be ‘fault’ within the meaning of sections 1(1) and 4 of the act.

Lord Denning considered the issue in Lane v Holloway when he held that a claimant’s insult to the defendant’s wife and his initial attempt to punch the defendant could amount to ‘provocation’, so as to take away an element of aggravated or exemplary damages but it could not reduce the real ­damages.

Later, in Murphy v Culhane [1977] 1 QB 94, he acknowledged that this seemed to show that provocation could not reduce pecuniary damages in a claim for assault. He sought to confine Lane to cases where ‘the conduct of the injured man was trivial and the conduct of the defendant was savage - entirely out of proportion’. He repeated his judgment in Gray v Barr [1971] 2 QB 554 that: ‘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 Justice Aikens considered these remarks problematic in the light of the analysis of the definition of ‘fault’ in the later decisions of the House of Lords in Standard Chartered Bank v Pakistan Shipping Corporation and Reeves v Commissioner of Police. He held that the proper approach, based on the accepted interpretation of ‘fault’ in section 4 of the act is to ask whether that conduct by a claimant could have given rise to a defence of contributory negligence at common law, which question Lord Denning did not pose or answer. He therefore rejected those decisions in preference to the decisions of the House of Lords in Standard Chartered Bank and Reeves.

Lord Justice Aikens concluded that unless the Co-op could establish that a defence of contributory negligence to a claim for damages for the tort of assault or battery existed at common law, the act could not be applied so as to provide one.

The purpose of the act was to relieve claimants whose actions would otherwise have failed, not to reduce the damages which would previously have been awarded to them. Accordingly, the Co-op was not entitled to rely on contributory negligence to defeat the claimant’s claim or reduce her damages and the appeal on this issue failed.

District Judge Margaret Langley sits at Central London County Court