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

Power v Higgins and others [1833] NSWSupC 17

Power v. Higgins, Higgins, Ryan, Marr and Cunninghame

assault - road accident

Supreme Court of New South Wales

Dowling J., 11 March 1833

Source: Sydney Herald, 14 March 1833

Power v. Higgins and wife, Daniel Ryan, Timothy Marr, and Edward Cunninghame - This was an action to recover a compensation in damages for assault and battery.

On behalf of plaintiff, the following evidence was adduced: - Plaintiff, who is a tripe merchant, proceeded to Parramatta on the 3d October last to follow his occupation at the Races.  On returning in a chaise cart, about seven o'clock in the evening, when near the Plough Inn, a party, consisting of six or seven persons, were seen ahead on horse-back, spread all across the road.  Plaintiff, who was driving at a moderate trot at the time, called out to them, to let him pass; they did not do so, and plaintiff kept on his course, and in doing so, the wheel of the chaise struck the hinder parts of a horse rode by a person named Rochford, who was in a state of intoxication; Rochford fell back, and tumbled under the wheels of plaintiff's chaise, who jumped out and caught hold of the head rein, to prevent any further injury; Cunninghame and Ryan came up, and dragged him from the horse, and beat him, together with Marr; Higgins rode up, and beat him over the head with the butt end of the whip, and knocked him down, splitting open his hat, and loosening the bridge of his nose; Mrs. Higgins also cut him over the face with her whip, until it resembled a piece of scored pork; from this treatment plaintiff was obliged to keep his bed for some time.  To recover compensation for this assault, the present action was now brought.

The defence to the action was, that Rochford, in a state of sobriety, was trotting his horse down the hill, when Power drove his horse furiously down the hill, the shafts of the chaise striking Rochford on the right leg, and throwing him under the wheels of the chaise; Marr came up, and prevented the chaise from passing over him, and that Rochford was telling the people assembled at the time, not to strike the man, but take the number of the cart.  There was also ample room for Power to have passed without running against Rochford.

The Assessors found a verdict for plaintiff, damages £30.

Published by the Division of Law, Macquarie University