The Problem with Provocation in Trespass

Abstract

AbstractShould a defendant to an action in trespass be entitled to a reduction in compensatory damages on the basis of provocation by the claimant? Judges and academic commentators are divided on the issue, although the weight of authority is that, in Australia, New Zealand and the UK, no such reduction is permissible. This article demonstrates that the reasons conventionally offered in support of the current position are unpersuasive, and that a strong moral argument supports the reduction of damages in many commonplace scenarios. However, the article also shows that the continued rejection of provocation might be justified on the grounds that no principled basis exists upon which to preclude its operation in normatively problematic contexts, such as domestic violence and unwanted sexual advances. It is suggested that the best solution would be for the common law to recognise a partial defence of provocation, subject only to certain principled limitations, leaving it to parliament to ‘carve out’ appropriate policy exceptions.