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

Lynch v Robinson [1833] NSWSupC 30

assault - consortium, loss of - married women's legal disabilities - passenger on ship

Supreme Court of New South Wales

Dowling J., 2 April 1833

Source: Sydney Gazette, 4 April 1833[ 1]

Before His Honor Judge Dowling - Jonas Bradley, John Bray, Joseph Bollover, John Crane, Christopher Crane, John Clark, Samuel Blackman, Charles Burn, John Burn, Andrew Badgerry, Samuel Bowler, and J W Baylis, Jurors,

Lynch v Robinson - This was action of trespass, brought by plaintiff against defendant, who is master of the brig Wellington, on board of which vessel plaintiff arrived as a passenger, for depriving him of the services and comfort of his wife during the voyage to this colony, by using towards her such ill-treatment as caused her to be confined to her bed.  The damages were laid at £200.  The first witness called, was

John Canning - I was a seaman on board the brig Wellington, during her voyage to this colony; plaintiff and his wife were steerage passengers; I heard some scolding between plaintiff's wife and a Mrs. Burgess, who was also a passenger; plaintiff's wife upbraided her with misconduct on board the vessel, with frequent drinking in the chain with the captain, and of being unfaithful to her husband.  I believe this scolding took place on the 9th June; I saw another passenger named Ovens, dragging plaintiff's wife out of the round-house; I understood he had dragged her out of bed, she screamed dreadfully; she had nothing but her shift on; she was dragged forcibly forward; she might have remained forward about half an hour when she was taken aft to bed by some of the women.

Robert O'Brien - I was a passenger on board the brig Wellington; the captain was very friendly towards me; I used to get grog from him occasionally; I remember having heard words on deck one night; I heard a woman scream, when I went on deck, I saw a passenger named. Owens, dragging plaintiff's wife forward to the forecastle; I went towards them for the purpose of rendering assistance to the woman, when the captain who was standing at the side of the round-house, tapped me on the shoulder, saying, you need not interfere it is no business of your's, let her go forward, at the same time ordering Owens to haul her forward; I don't know the occasion of this conduct towards the woman; It was night, I cannot say what time; I know Mrs. Burgess; I was not aware of any altercation between them; they were steerage passengers; I was between decks; the captain must have been aware of the treatment this woman received; I am certain he told me not to meddle with it' plaintiff's wife was a peaceable woman; I don't know how many passengers there were on board.

Cross-examined by Mr. Norton - Disturbances were very common on board; it was about eleven o'clock at night this occurred, the captain was standing in the narrow passage between the round-house and the ship's side; it occurred before we came to Simon's Bay; I do not know what made Owens stop at the Cape, I believe Mr. Lynch was ill in bed at the time; I am not aware that he was drunk.

James Corlette - I was a seaman on board the brig Wellington; I know plaintiff and his wife; I recollect seeing plaintiff's wife dragged from the round-house by three or four men; she had nothing but her shift on; they said they would tie her up to the windlass; I was sitting on the starboard side of the deck; there were two of us on watch; I did not see the captain on deck, nor did I look if he were on deck; some one said that it was too cold to tie her to the windlass; it would be better to tie her to the cook's gallery, when the cook swore he would be damned if she should be put there; they then said they would put her in the long boat; she was not put in, but took forward; I do not know how long she remained forward' I do not know the be reason why Owens left at the Cape; Burgess left at Hobart Town, but I can not say from what cause.

Cross-examined by Mr. Norton - I did not interfere, it was not my business; I thought the men were drunk; rows of that kind were very frequent; they obtained rum from the cabin; the captain and he selected four of them; Canning was on deck at the time; the captain might have been behind the round-house at the time, but I did not see him.

Isaac Williamson examined for the defendant - I am 2nd officer of the brig Wellington; I know the plaintiff and his wife; Mrs. Burgess was a passenger; I know of a quarrel between plaintiff's wife and Mrs Burgess; it was on the 9th June, before we arrived at the Cape; I was on deck at the time plaintiff's wife was drunk; it was just dark between 10 and 11; one Owens was concerned in a disturbance that night; the plaintiff's wife was kicking up a row and calling the other women foul names; plaintiff was lying drunk in bed; Owens put a rope round plaintiff's wife, but did not make it fast' I did not hear of any ducking; the captain was asleep at the time; on hearing the disturbance came on deck; when I told him what was the matter, which was of so common a nature that he never interfered but went below immediately.

Cross-examined by Mr Stephen -I had been in the round-house during the day; I saw Mr. Lynch the plaintiff drinking; I know that Mrs. Lynch was not confined to bed in consequence of the injuries she had received; I am certain that the captain was asleep when the disturbance took place; the captain never sold spirits; I am still 2nd officer; most of the seamen and passengers have left the ship; I am not aware of their being glad to leave such a ship, they may probably be very sorry.

John Smith examined - I am cook on board the Wellington; I recollect a disturbance between plaintiff's wife and some of the passengers; I was sitting on the windlass; I heard the row and the roundhouse was burst open; I heard plaintiff's wife scream violently; I said to myself, "oh, there's the old cry again;" I saw John Owens and Burgess dragging her forward in her shift with a rope round her body; they were going to tie her to the windlass, when I said if you are going to put her any where, put her in my gallery it is too cold on deck; they told her if she would promise not to make a noise and let them sleep they would let her go; she promised to make no more noise and she was released and went aft to her berth; I did not see the captain on deck; I looked about particularly.

Cross examined - The night was very cold; I don't know how far we were from Cape Town; I don't recollect dates; I can sleep pretty well in a storm; she promised to make no more noise; I would promise anything rather than be tied upon deck on a cold night naked.

By a Juror - I did not refuse her admittance into the galley; I said it would be better to put her there than tie her up exposed to the cold.

Other witnesses were called in behalf of the defendant, who corroborated the circumstance of the captain's not having interfered in the affair.  His Honor summed up and left the case with the jury, who returned a verdict for the defendant.

 

Notes

[1 ] For the trial notes, see Dowling, Proceedings of the Supreme Court, Vol. 81, State Records of New South Wales, 2/3264, p. 89.

For another report of the trial, see Sydney Herald, 4 April 1833.  This was apparently the second trial on these facts, the first having been on 18 March 1833 before Forbes C.J. and ending in a non suit: Sydney Gazette, 23 March 1833.

See also the related case of Maher v. Robinson, 1833.

Published by the Division of Law, Macquarie University