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Decisions of the Superior Courts of New South Wales, 1788-1899

Aird v Raine [1825] NSWSupC 59

assault - convict service - assessment of damages - toll bridge

Supreme Court of New South Wales

Forbes C.J., 30 November 1825

Source: Sydney Gazette, 8 December 1825

 

This was an action brought to recover damages for an assault, committed on the person of the plaintiff, Mr. William Aird, Superintendent of the Government Works at Parramatta. The damages were laid at £500, and the defendant pleaded the general issue.

Mr. Rowe stated the case for the plaintiff, and called the following witnesses.

Charles Reilly examined. - I am a sawyer employed in the Lumber-yard at Parramatta; I know the plaintiff; he is Superintendent of the Government Works; I am under his superintendance; on the evening of Friday, the 30th of September, I was at work close to the bridge at Parramatta, when I saw the plaintiff ride at a tolerable quick pace towards the bridge, followed by the defendant, who was also riding; I saw the defendant strike the plaintiff several times when he came up to him across the shoulders, with a whip or stick; the plaintiff beckoned to me to come forward, but before I could arrive at the spot the defendant rode off; I did not hear what passed between them; the defendant said he wished he had his whip, "or his other whip," for plaintiff's sake; the blows appeared to be given violently; the plaintiff offered no resistance, nor did he attempt to strike the defendant.

Cross-examined by Dr. Wardell. - The plaintiff has never spoken to me on the subject of the evidence I was to give here to day, further than saying he would have me as a witness; I never said to any body that I knew nothing of the transaction; I have had no threats held out to me; I saw the defendant strike the plaintiff with a whip or stick, I can't say which; I did not see the commencement of the fray; it began at the farther end of the bridge from where I was, nor can I say whether plaintiff struck the defendant first.

By the Court. - I am positive that the defendant struck the plaintiff two or three times.

Joseph Knight examined. - I am a labourer in Government employ;[1] I was at work along with the last witness near to the bridge, at Parramatta, on one evening at the latter end of September last; I saw the defendant gallopping after the plaintiff, and when he came up strike him two or three times across the shoulders with a whip or stick, I can't tell which; it did not appear very large, but was large enough for the plaintiff to feel it; the defendant seemed to hit as hard as he could.

Cross-examined. - I was at work near the bridge sawing; the pit is not under the bridge; I can't say whether it was a stick or a whip the defendant used; I was not near enough to see; I have never spoken a word to the plaintiff as to the evidence I was to give; I came down from Parramatta with him yesterday; I have never spoken to the last witness on the subject; we never asked each other what we had to say, nor never made up any story between us; I am under the superintendence of the plaintiff, but I am not aware that he has it in his power to make my labour light or heavy according to the evidence I give here; he has never promised me a ticket of leave, nor given me any reason to believe I would get one; I have never said to any one that I know nothing of the matter.

Daniel Spillard examined. - I am a clerk in the Engineer department at Parramatta; on the evening of Friday, the 30th of September, I saw the plaintiff and defendant meet on the Parramatta bridge; the plaintiff was riding from the direction of the toll bar; the defendant was following, and came up with the plaintiff near the bridge, when he struck him with something like a twig or green stick, and continued striking at him all the way over the bridge; I heard the defendant say to plaintiff, "by G-d I wish I had my big whip for your sake;" the plaintiff rode away and did not make any resistance, or give the defendant a good beating as I certainly thought he should have done.

Cross-examined. - I did not see the plaintiff hold up his hand in a threatening attitude before the defendant struck him; the plaintiff never spoke to me on the subject.

Several other witnesses were called, whose testimony merely corroborated the facts already detailed.

Dr. Wardell addressed the Court for the defendant. A great deal, he observed, of the character of the case might be gleaned from the circumstance, that about 15 witnesseshad [sic] been subpoena'd to prove a simple fact, and also that all the witnesses were in some way or other connected with the plaintiff, and had something to gain, or something to lose, according to the evidence they should give. The real history of the transaction he would detail to the Conrt. [sic] It appeared that the defendant had for some time prior to this occurrence, rented the toll bars in the neighbourhood of Parramatta, and let them out to various persons. The dwelling and other parts appertaining to some of the gates were becoming in a very dilapidated state, and frequent complaints had been made by the persons who occupied them to the defendant. In consequence of these, the defendant wrote to the Chief Engineer, but from press of business, or some other cause, the application had remained for some time unattended to; he then wrote to the plaintiff, who, like master, like man, thought proper to imitate the seeming manners of his betters, and thinking himself a great man in office, would not condescend to answer letters from any body. Thus rested the affair, when the defendant happening to meet the plaintiff at the toll bar near Parramatta, took the opportunity of introducing the subject of complaint, but the plaintiff, getting on his high horse, said that no repairs were wanted, when an altercation arose, in the course of which the plaintiff offered to strike the defendant, and then rode off, after which it was that the defendant followed him; such was the true statement of the case, but, unfortunately for the defendant it happened that he was without any proof, to rebut the evidence brought forward against him, unless by calling witnesses in the same situation, and equally under the lash, equally under the caprice of the plaintiff, as those already produced. He (Dr. Wardell) would therefore rest his client's case with the Court, without calling any evidence, and submit, that the very circumstance of summoning so many witnesses, merely to swell a lawyer's bill, and to put the defendant to as much expense as possible, when one good competent witness would have sufficiently established the fact, evidently shewed that it was the plaintiff's intention to excite and irritate the defendant; and then to come into Court under the pretence of seeking redress, but in fact from motives of malice and revenge. The Jury, however, would, he trusted, shew by their verdict, that matters of that nature were not wantonly to be brought into a Court, and that the time of Courts of Justice was not to be taken up by such people as the plaintiff appeared to be.

His Honor, in summing up, stated to the Jury, that no evidence had been brought forward to rebut the statement of the part of the plaintiff. The fact of the assault was clearly proved, and it only remained to estimate the amount of damages to which the plaintiff was entitled. It appeared that the parties met at the toll bar, when an exchange of civilities in the first instance took place, from which it would appear that the assault was not the effect of previous deliberation, and though that circumstance did not amount to a justification, yet it was to be taken into account, in considering the amount of damages which they would feel it their duty to award. It appeared also, that the plaintiff had offered no resistance, and though that such conduct denoted a praiseworthy forbearance on the part of Mr. Aird, still it shewed that the assault was not of that violent kind, nor that he was not so extremely aggrieved, when the more powerful man of the two as he was represented to be, went off as he did. This (said His Honor) I do not mention as amounting to a justification, but to be taken into consideration in estimating the damages for the assault and battery, as proved to have taken place on the person of the plaintiff. - Verdict for the plaintiff, £10 damages, with costs.

 

Notes

[1] A common euphemism for a convict assigned to work for the government.

Published by the Division of Law, Macquarie University