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

Bodenham v. Biddulph [1832] NSWSupC 43

assault - provocation to naval man - passenger on ship

Supreme Court of New South Wales

Stephen J., 22 June 1832

Source: Sydney Herald, 25 June 1832[1 ]

 

Bodenham v. Biddulph, R. N. - This was an action brought to recover compensation in damages for an assault committed upon plaintiff by defendant.  There were two counts in the declaration, which varied the nature of the assault.  The damages were laid at £1000.  The defendant pleaded the general issue.

This action arose out of the following circumstances: - On the 13th Dec. last, the plaintiff intending to proceed on business to Maitland, applied to the defendant, who was the Commander of theSophia Jane steam vessel, to know the time that vessel left Sydney, who replied, 8 o'clock! at the appointed time plaintiff proceeded to the King's Wharf, where defendant was standing, who informed him that the vessel could not sail, as she had got aground, but that he had procured hands from the Dock-yard, and spared neither trouble or expense to get her off; plaintiff grumbled; defendant said he was one of the most independent men in New South Wales, and he did not care a dm for any body; plaintiff asked several more questions, to which the Captain did not deign a reply; plaintiff said, am I not worth a reply, the defendant said, ``Your a dd impertinent fellow, and you do not treat me like a gentleman," plaintiff replied he did, defendant rejoined, you are treating me dd rudely; ``you lie" said plaintiff, who immediately measured his length across an anchor lying on the Wharf, and a copious libation flew from his nose and mouth, to which state he was reduced by defendant's dexter knuckles; get up said defendant, and while attempting so to do, a second application stretched him on his back, and some smart kicks were also applied, from which blows and kicks, he was unwell for several weeks; this was the assault complained of.  The only defence set up was, that plaintiff had drawn the chastisement upon himself by calling a gentleman of the Royal Navy, a liar.  The Jury found a verdict for plaintiff - Damages, £75.[2 ]

Dr. Wardell, and Messrs. Wentworth and Unwin for plaintiff; Messrs. Foster and Norton for defendant.

Notes

[1 ] See also Australian, 29 June 1832; Sydney Gazette, 23 June 1832.

[2 ] The Sydney Gazette, 23 June 1832, summarised the judge's charge to the jury as follows: "An assault had been proved against the defendant by the testimony of different witnesses; and from that of Dr. Moran, they had learnt that contusions, attended with dangerous results, had been received by the plaintiff.  Under all the circumstances in evidence, it would be for them to estimate what degree of provocation had been received, and what amount of compensation would satisfy the plaintiff for his injuries on the one hand, and public justice on the other."

Published by the Division of Law, Macquarie University