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

Wardell v. Francis [1829] NSWSupC 39

damages, personal injury - animal, personal injury caused by

Supreme Court of New South Wales

Forbes C.J., 11 June 1829

Source: Sydney Gazette, 13 June 1829[1 ]


This was an action of trespass on the case, brought by the plaintiff, Robert Wardell, Esq. L. L. D. against the defendant Benjamin Francis, Proprietor of the King's Head Inn, Penrith, to recover compensation in damages for an injury received by the plaintiff by a kick from a horse, through the negligence of the defendant. The defendant pleaded the general issue.

Dr. Wardell who appeared in person on the occasion, briefly stated the circumstances of the case to the Jury, and proceeded to call the following witnesses:--

James Iggulden -- I have been servant to Mr. Bateman of Parramatta for 8 or 9 years, up to last week; I remember seeing the plaintiff come to an Inn at Penrith, the sign of the King's Head, about three months ago; a man named Jones is the reputed owner; the defendant could not be the owner as he is a ticket-of-leave man; it is called Francis' Inn; the defendant lives there and the servants obey his orders; when I came to the Inn on the Sunday, there were two horses in the stable, and in the evening the defendant brought another, which he said was a favourite mare; he ordered me to take my horse out of the stall I had placed it in, saying that it was the one usually occupied by his own horse and he would allow no other to be in it; I did so, and placed my horse in a stall lower down; after this the ostler told me that the mare which defendant had brought in was a vicious mare, and desired me to be cautious of her; the mare stood in a stall directly opposite the door; about two hours after plaintiff arrived at the Inn, and ordered the ostler to take care of his horses, and he would reward him, which he promised to do, and plaintiff went into the house; shortly after, plaintiff returned again to the stable and expressed a wish that his horses would not remain in the stable all night, and he was shewn another place to put them; I offered to lead one of the horses out which appeared to be a little lame, and just as I was going out of the stable door, I heard the defendant exclaim, ``O Lord!" -- looking round I saw the plaintiff lying on the stable floor, and the mare kicked at least ten times while he was down; I endeavoured to remove the plaintiff from the stable but could not owing to the kicking of the horse, until some of the servants cane to my assistance; after the plaintiff was removed into the house, I heard the defendant blame the ostler much for not informing plaintiff that the mare was vicious; shortly after I was present with defendant in the stable, and saw a hat lying on the floor; I said ``whose hat is this?' defendant replied ``O its Wardell's hat," and gave it a kick; I heard the defendant say subsequently that about two months before, the mare had been forced to a horse and that she kicked at everything since that; after the accident, on the same night, I heard defendant say that Dr. Wardell was a very poking man about his horses, and that he had no business in the stables as he (defendant) kept an ostler to do justice to the horses that were brought there; the following morning as plaintiff was getting into my gig to be conveyed to Sydney, I heard him say to defendant, ``Francis have me conveyed to Sydney and my horses sent down or it will be a sore day for you" defendant said to plaintiff, speaking of the accident, that it was ostler's fault for not informing plaintiff that the mare was vicious the mare kicked my horse on the following morning after the accident; the plaintiff saw her do so; I have been offered five or ten pound to hold my tongue, by a man whom I could point out; defendant called me a scoundrel the other night; I have had no communication with him since the accident occurred; the morning after the accident the mare was in the same stall; she kicked my horse as he passed, and plaintiff observed to defendant, now you see she is a vicious animal, she kicks at everything. 

Cross-examined by Mr. Rowe -- I am not now a servant to Mr. Bateman; I left him because one day he sent me for a load of grass which not liking when brought he kicked me, upon which I knocked him down, and he took me to Court; when I returned from Sydney to Parramatta, after conveying Dr. Wardell down, Mr. Bateman asked me the cause of my stay, and I told him what had occurred, and that he would be paid for bringing Dr. Wardell down; I told Mr. Bateman how the accident occurred as I have stated here today; I never said plaintiff touched the mare on the rump; it has been said that I said so, but I never did; I always said it never could have been the ostler's fault as he was at the other end of the stable; I said so in the kitchen, at defendant's house, the night after the accident; there were three of the servant's present, but I do not know their names; two of them were the ostler and cook; when I was leading the plaintiff's horse out, the other was in the stable; he was going to lead the other horse out; the mare and the plaintiff were between me and the ostler when the accident occurred; if the ostler had come to the door, he must also have passed the mare; I do not consider the ostler could have seen more than me, as the light was knocked out in the confusion; before the kicking took place there was a light in the stable; I never heard the name of the mare; she is a bay mare with a switch tail, as well as I remember; I cannot say whether she is a dark or a light bay mare; I saw a mare brought in from the paddock by Francis that evening; it was not that which kicked the plaintiff; she was a light chestnut; a man came to me the other day, and said it was a pity that one poor man should hurt another, and it would be better for me to receive five or ten pounds; this was at the Rose and Crown Inn; I know the man, and he said he would call defendant out of the room; I said I did not want to see him, that I must and would tell the truth; I would not take tip, but I would soon have put the money in my pocket if it had been put upon the table; I would have taken it to Dr. Wardell; I am a prisoner for life, and have held a ticket-of-leave 10 years; I was sent here for robbing a man in a house; there was no force used; it was a bit of a sneak; I told Mr. Bateman that I took plaintiff to Petersham, and that he was to charge what he pleased; I told Mr. Bateman that I had refreshment at Petersham; by order of Dr. Wardell; I never told him that I breakfasted and dined with the Doctor; I never told him that Dr. Wardell would provide for me; Dr. Wardell gave me a pound, for attending on him, I never said that Dr. Wardell had promised, after this action was over, to take me into his service and provide for me, but I said I would ask Dr. Wardell if he wanted a servant; I never said to a man named Wilkins that I would turn the tables for whoever paid me first; money has been talked of to me, and I have said if you put down £10 see if I don't take it up; I was in the stable about ten times, but I was cautioned against the mare and always spoke to her as I passed.

Re-examined -- I never asked plaintiff if he wanted a servant; I heard plaintiff say he had travelled a long distance that day; it was moon-light when the accident occurred; it was a dark stable, and the ostler at the far end of it; even if he had a light he could not see at the distance he was at whether plaintiff touched the mare; all the people about the house knew at once that it was the mare kicked, without being told.

Miss Jane Fisher, niece to the plaintiff stated, that he was confined to the house about two months, owing to the injury received from the kick of a horse, and during which time he was wholly unable to practice his profession; three weeks of that time plaintiff was confined to his bed; the cost, altogether for medical attendance and other necessaries was about £30.

Dr. Bland -- I attended the  plaintiff during his illness; I was first sent for to Petersham, and discovered the plaintiff had received a very severe injury from the kick of a horse; plaintiff was very ill, at the expiration of a week plaintiff came to Sydney, where I continued to attend him and considered him so ill that I thought it proper to call in Dr. McLeod; the illness of plaintiff lasted about 6 weeks during nearly all of which time I was opinion that though there was no immediate danger it would very probably end in the ruin of his constitution, or a very protracted illness; I think under all the cumstances, [sic] plaintiff did right in leaving Penrith, rather than submit to bleeding or a course of medicine there.

Cross examined by Mr. Rowe -- the injury was on the left side, and the lower end of the back part of the ribs; it injured the cartilage of the ribs, and the inflammation extended to the cavity of the chest.

This was the plaintiff's case.

Mr. Foster addressed the Court on behalf of the defendant, and commented very ingeniously on the testimony to the first witness for the plaintiff, whom he contended, was not worthy of belief.  The Learned Counsel also took some legal objections which were replied to by Dr. Wardell.

For the defence, the following Witnesses were then called by Mr. Rowe.

George Collis senr. --- I am a settler at the Nepean; I sold a mare now called Duchess, to the defendant about the beginning of September last; I saw her a week or ten days ago, tethered in the defendant's yard, at Penrith; she is a dark bay  mare; I bred her, I never knew her to be vicious; she was about 3 years old when I sold her; I never heard or knew that she had any vice about her; I sold her for £65 sterling.

Cross-examined by  Dr. Wardell --I know defendant had a mare named Meg Meriles; I do not know whether she is a kicker; I do not know whether it was Meg Meriles or Duchess did the mischief.

George Collins junr. ---Son of the last witness, deposed to the same effect.

Cross-examined --- I have been at defendant's Inn since the accident; I heard some talk of the mare having kicked somebody, but I do not know, even at this moment, who she did kick; I never heard who she kicked.

Samuel Daw, a Blacksmith near South Creek, stated he knew a dark bay mare in the possession of defendant; she is called Duchess, Witness has been in the habit of shoeing her, and never knew her to be vicious; believe defendant purchased her of a man names Collis; Witness knows a mare in possession of defendant called Meg Meriles; she is a chestnut mare.

Cross-examined--- I know nothing of character of Meg Meriles --- I do not know of my own knowledge that it was Duchess kicked plaintiff; has been told it was her, never heard of her kicking any one else.

Richard Hodgen - I am a ticket-of-leave man, in the service of Sir John Jamison; I lived with defendant about four months ago; defendant has a bay mare called Duchess; I have driven her in a cart; I know a place called the Punt Hill; I was driving the mare in a cart there on one occasion, when a shaft broke, and I was thrown off between the cart and the mare, and she stood quite still; in my opinion she is a quiet mare; I have groomed her very frequently.

Cross-examined --- This was about four months ago; I do not know whether that was before she was forced to a horse; I know nothing about her having been forced; I have had some conversation with defendant about this matter; he asked me if I remembered the accident of the cart, and whether the mare stood still; I told him I did, and he said that was all he wanted me to prove.

John William Harris; I reside in Sydney; I have been at defendant's house several times; I was there at one time for a fortnight; I rode a mare called Duchess two or three times; she was a bay mare; she was quite quiet, I never saw anything vicious about her.

Cross-examined; I have not seen her since January or February last; there was a chestnut mare in the stable also, who was quite quiet; I have never heard it said, that a mare belonging to defendant was sure to kick when a horse passed her.

William Wilson, Ostler and groom, at the Globe Tavern, stated that a mare called Duchess, belonging to defendant has frequently been in the stable under his care, when defendant has been in Sydney; witness knows of no vice in her, she is a very quiet mare.

John Fair; I know a mare called Duchess belonging to defendant; I saw her in the stables of the Globe Tavern, which I rent, about three weeks ago; she is a very quiet mare.

Mr. William Bateman -- I am a resident at Parramatta, and have been so for the last 32 years; I had a servant named James Iggulldon, till within something better than a week ago; I had occasion to send him to Penrith on a Sunday in Feb. last , in a chaise to convey a young man named Wilson up; on his return, I enquired why he had stopped so long, and he told me that an accident had happened at defendant's, Dr. Wardell having been kicked by a mare, and that he was retained to convey him to Petersham; I told him I was sorry for the accident, and was very glad my horse happened to be there, and asked him how the accident happened; he told me that he and Dr. Wardell were in the stable together, that he was behind Dr. Wardell, and saw the mare kick him very violently as he passed her; that the watch was kicked out his pocket, and his coat torn to pieces; I said it was very strange, you being so close, and not to have caught hold of Dr. Wardell and pulled him out of the way, but he replied that the light was put out and he could not see; he said that Dr. Wardell meant to make Francis pay severely for it, and that as the Dr. was about getting into the chaise, he saw the mare kick a horse in the stable, and said ``I had rather have seen that than get £50, for now I am convinced she is vicious animal; some time after plaintiff desired me to make out my bill for all expenses, and present it to Francis; I did so, and Francis came and paid it, saying ``this is a very bad job, but it was entirely an accident, as Dr. Wardell put his hand on the rump of the mare, Igguldon was standing by, and defendant said to him, ``you know that," and he replied, ``yes I do, he did so;" Igguldon asked me about a month ago , for permission to go to Petersham, to see Dr. Wardell who was to give him some money; I have heard him say that he received a pound or thirty shillings from Dr. Wardell; I gave him permission to go to Petersham as he desired, and on his return he told me Dr. Wardell had given him some money, and that he had breakfasted with him; I said ``you are at your old tricks again;" he is a great liar; I do not think he would refuse five shillings to tell a lie; I would not believe him on oath.

Dr. Wardell -- ``Go down Mr. Bateman, I'll not ask you any questions."

Matthew Donaldson -- I was cook at defendant's house in Penrith, in February last; I was there when the accident happened to plaintiff; the witness Igguldon, was there the same night, I heard him talking in the kitchen, as to the manner in which the accident occurred; he said he was not surprised at plaintiff having been kicked, as he laid his hand on the mare's rump as the horse was passing.

Cross-examined -- I am in defendant's service now; I remember plaintiff having conversation with defendant, as plaintiff was getting into the gig on the morning after the accident; plaintiff said he had been kicked by a vicious horse, and defendant said it was not a vicious horse; did not hear plaintiff say ``why it has kicked this man's horse," pointing to Igguldon, ``this morning;" did not heard defendant say in reply that it was the ostler's fault and not his, for not cautioning plaintiff; I heard plaintiff say that defendant was responsible for the acts of his master; I do not know that the mare kicked a horse the same morning; I do not think defendant gave the ostler directions to caution persons against the mare, I should think not, for she was placed in the stall next the door, which would not have been the case had she been considered vicious.

Re-examined - every attention was paid to plaintiff by every one in defendant's house after the accident.

Wm. Daw, a settler at the Nepean, stated, that he was at defendant's house on the night of the accident, witness saw Igguldon at the stable door after the accident, in presence of defendant; defendant said ``in the name of God, how did the accident happen?" Igguldon replied ``I'll tell you, Sir; it was the Dr's own fault, for as he was passing, he put his hand on the mare's rump".

Wm. Wilkins, bailiff at the Court of Requests, deposed to hearing a conversation between the witness, Igguldon, and another man, at the Rose and Crown tavern, on Tuesday last, in the course of which Igguldon offered to ``turn the tables" on the plaintiff for £10.

This was the defendant's case.

Dr. Wardell spoke to evidence at some length.

The learned Judge then minutely recapitulated the evidence, and having retired with the assessors for  short time, returned into Court with a verdict for the plaintiff, damages £30, with costs of suit.

Counsel for the plaintiff, Dr. Wardell, for the defendant, Messrs. Foster and Rowe.



[1 ] See Sydney Gazette, 23 May 1829, describing Wardell's injury as severe; and see Australian, 12 June 1829.  The Sydney Gazette, 13 June 1829, also reported Wardell's successful action in trespass against an Assistant Engineer, Thorpe, who had cut a road through part of Wardell's estate at Petersham.

Published by the Division of Law, Macquarie University