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

Joseph v. Polack [1838] NSWSupC 22

assault - damages, assessment of - damages, for mental injury - damages, personal injury

Supreme Court of New South Wales

Dowling C.J., 12 March 1838

Source: Australian, 16 March 1838[ 1]

MONDAY.  Joseph v. Polack. - This was an action of assault.  Mr Therry opened the pleadings.  The plaintiff was Mr. Henry Joseph, and the defendant was Mr Polack the auctioneer; the declaration stated that the plaintiff without any cause, beat, struck and otherwise ill-used the defendant, so that he became lame, sore, sick and disordered; damages were laid at £1000.

The Attorney General stated the case.  He said he had little more to do than briefly state the circumstances under which the assault complained of took place.  The parties were Mr Henry Josephs, plaintiff, and Mr Polack the auctioneer, who was well known as having, since the secession of Mr Lyons, carried on the extensive and lucrative business formerly carried on by that gentleman; he was not finding fault with him for making - he hoped honestly, but at any rate by his industry - the sum of £10,000 or £12,000 per annum, which was the sum Mr Lyons was well known to have been in the receipt of, as it would the better enable him to pay the damages which he was sure the jury would award.  The plaintiff, Mr Henry Josephs, is a younger brother on his mother's side, to Mr P. J. Cohen, a respectable gentleman residing at Maitland, and did not arrive in the Colony until several years after his brother, when seeing his brother's respectability and finding that there were many persons in town of his own name who were of very ill repute, he took his brother's name in business.  This circumstance he had no doubt would be made a handle of on the other side; but it would only shew that they were glad to make a handle of anything, that would take the minds of the jury from the real issue in the case.  However strange it might appear, he (the Attorney General) had no doubt he should be able to shew the jury that the plaintiff had been twice assaulted by the defendant, without having given him the smallest provocation, and that he had not even the excuse of being irritated.  On the first occasion Mr Joseph was standing in front of the Royal Hotel when Mr Polack passed in a gig; as soon as he saw Mr Joseph, he pulled up and got out of the gig, and immediately laid hold of the plaintiff by the collar and beat him most unmercifully; there was no provoking language, no insult, nor any thing to form the least excuse.  Not satisfied with this, the defendant knowing that the plaintiff would not suffer such an indignity to pass without notice, the same day, while the plaintiff was passing his auction rooms, crossed the street and horsewhipped him a second time, saying that he knew Mr Joseph would bring an action and he would horsewhip him night and morning, until he got the worth of his money.  This showed that the defendant knew Mr Joseph must get a verdict; but as he was rich and able to pay it, he would set the verdict of a jury at defiance.  Gentleman, this most aggravated and cowardly assault took place in the open day, in one of the public streets, and in the presence of many respectable persons.  This circumstance will shew you the necessity of awarding heavy damages in order to throw a cloak of protection round your fellow citizens from assaults of this kind - for, gentleman, what can be more degrading to the feelings of a man than being publicly horsewhipped?  He who would not feel himself degraded by such an exhibition, cannot be possessed of the finer feelings of man.  There is no class of individuals who would not feel himself degraded - no! not even a man in an ironed gang.  It was but the other day that a defendant was cast in £50 damages, for merely striking another person one blow, and that blow was struck in the bush, and the parties present were relations.  Therefore, gentlemen, the amount you ought to award the plaintiff in this case should be very heavy, considering he received his degradation in the public streets of Sydney.  Gentlemen, Mr Polack, not satisfied with committing the first cowardly assault - committed a second; I consider it cowardly for a young man of Mr Polack's athletic frame, to assault another person whom he must have known was not able to resist or retaliate.  I do not consider it necessary for me to say anything further at present, but will wait to see what reply the defendant will put forth.

The following witnesses were called:

Mr William Knight. - I keep the Family Hotel, next door to the Royal Hotel; I know the plaintiff and defendant; I was called down stairs by a young man named Dyball, when I saw the defendant have hold of Mr Joseph or Mr Cohen; he said he would teach him how he made use of his name, and laid on him with a horsewhip; he gave him a severe thrashing; Polack's gig was nearly opposite my door; when I came down stairs he had hold of plaintiff by the collar.

Cross-examined. - I generally call the plaintiff Cohen; he always signs his name Henry Joseph Cohen; I did not see Polack get out of the gig, but he had not horsewhipped him at that time; Cohen said ``very well Mr Polack," or something like that; to the best of my recollection it was a handwhip; it was between two and three o'clock; Mr Joseph said he had not done what Mr Polack charged him with - he did not call Mr. Polack a liar, nor did he move; I heard nothing about being a lady's man; he was not touched about the face; Mr Joseph came into my house, and said he would bring an action, and subpoena me as a witness; Mr Cohen afterwards told me that Mr Polack had accused him of mentioning his name to a widow lady in a disrespectful manner.

Re-examined. - As Polack had hold of Joseph's collar, he could not very well get away from him; Mr Polack is much the stronger man.

Mr James Tegg. - I know the parties in this action - H. J. Cohen and Abraham Polack; about two or three months ago, Mr Cohen was talking to me, and crossed the road to the barrack wall; the defendant crossed from his rooms and laid his whip across the plaintiff; Mr Cohen was going towards the lower end of the town; I cannot say how often he struck him; I only saw those two persons in the street at the time; it was about six o'clock in the evening; I heard nothing said by either of the parties.

Cross-examined. - Mr Cohen had been telling me that Mr Polack had horsewhipped him; he did not say he had come for some more, but he might have gone round another way to his house; he did not tell me what he had been horsewhipped for; I did not see all the horsewhipping, I went into my shop.

Re-examined. - I do not know a shorter way to the plaintiff's house than to pass my house coming from the Royal Hotel; the plaintiff crossed the street to avoid Polack's house.

Mr Knight recalled. - Mr Cohen took Polack to the Police Office about this matter; he was bound to the peace.

Mr R. Blake. - I was standing at Mr Broad's door when the defendant horsewhipped the plaintiff, about two months ago; I observed Mr Polack in his gig, and when he came opposite Knight's Hotel, the gig stopped, and Polack got out and went towards the plaintiff; he struck him with a whip several times, not less than a dozen; the blows were laid on pretty hard; Mr Polack said ``take that you d--- rascal, it will teach you to make use of my name."

Cross-examined. - I never heard, until this moment, that the plaintiff had been horsewhipped more than once; the whip was about a yard long; from the flogging he got he might have been hurt; there were not many people present; Mr Cohen did not make any attempt to get away.

Mr Welsh, printer. - I saw the plaintiff talking to Mr Tegg; I afterwards saw Mr Polack horsewhipping him; this was about seven o'clock; Polack had hold of him by the collar.

Mr Simon Joseph. - I have taken the name of Cohen in consequence of my brother having taken the name of Cohen prior to my arrival; my mother was first married to a person named Cohen; the plaintiff is my brother by both parents, and is named Joseph.

This was the case for the plaintiff.

Mr a'Beckett addressed the jury on behalf of the defendant.  He admitted at once, that the plaintiff was entitled to some damages, but that the amount ought to be very small.  The assault was far from aggravated, and the plaintiff came before them in a very questionable character.  It was admitted by his own counsel, that he (the plaintiff) had changed his name from Joseph to Cohen, for the purpose of giving him a respectability in appearance which he did not in reality possess.  Again, it was not in evidence that the defendant had any fixed pursuit, or that he moved in any station, or was engaged in any occupation from which the jury might judge how far he had been injured by the assault complained of.  It was clear, the learned counsel contended, that in point of bodily hurt, the plaintiff had little or nothing to complain of, as no marks of his punishment were visible, nor was he compelled to seek medical aid, or forego for a moment his ordinary pursuits.  On the contrary, after the first horsewhipping, so faint an impression had been left on the body of the assaulted, that he had evidently no grounds for asking damages for the injury.  This, the learned counsel contended, was clear from the fact of his immediately afterwards threatening an action, and at the same time walking up and down Mr Polack's door, till he had provoked him to a repetition of the attack.  It was obvious from this that the plaintiff sought the horsewhipping, thinking Mr Polack a good mark for damages, and that the more stipes he (Joseph) submitted to endure, the more cash he should be entitled to ask.  If that was not the case, the patience and fortitude of the plaintiff under the whipping he had incurred were most exemplary; for it was in evidence that he had neither moved nor spoke during the operation, but had stood quiescent as if the whole affair was a matter of infinite satisfaction.  His patience strongly reminded the learned counsel of an anecdote he had read in Gibbon's Roman Empire, of a young patrician who used to amuse himself by going about the streets of Rome with a bag of money and a whip, and thrashing at a shilling a head, every slave he met.  It struck him, Mr a'Beckett, that if a similar law was in force here, Mr Cohen alias Joseph would be found a zealous candidate for the whip and the shilling; that, equally ambitious of cash and stripes, he would prove an excellent subject for those displays of patrician eccentricity; certainly he had exhibited, in this instance, a remarkable yearning for flagellation, and Mr a'Beckett's only wonder was, that Mr Polack's whip had not returned the invitation on the part of Mr Cohen alias Joseph's shoulders with more warmth and cordiality.  But then it was said that Mr Cohen alias Joseph had suffered in public estimation!  ``Public estimation!" why the fellow was never heard of before - and as to the notoriety gained by the thrashings, it turned out that no one thought it worth while to interrupt the first, and not more than a couple of spectators were witness to the second.  Notwithstanding the severe chastisement of the illustrious incognito, Sydney had remained in profound tranquility, and even after the second thrashing of the great unknown, things had gone on as usual - in fact, for any thing that appeared to the contrary, Cohen alias Joseph might have been thrashed from the gaol to the barracks, and the Australian public would still have been ignorant of the horrid fact.  However, he was entitled to some damages, if only for the submissive humility with which he had kissed the rod of correction, and Mr a'Beckett thought that sixteen-pence a stripe was not too much to award him.  He had estimated his own damage at £50 per stripe, but he had evidently taken an erroneous view of the matter, on which, no doubt, the jury would set him right.  Mr a'B. left the case in their hands, and had no doubt that by their verdict they would read a salutary lesson to Mr Cohen alias Joseph.

The Chief Justice said, that, as was conceded by the counsel for the defendant, if they believed the assault had been committed, they must find a verdict for the plaintiff.  It is necessary for the preservation of the public peace that parties shall know that they can obtain justice by coming before a jury; and he considered that the plaintiff was to be commended for coming into Court.  There probably had been, as it had been stated by the learned counsel, some cause for the committal of the assault, and something that the plaintiff had said to some lady had been alluded to, but if what was said was of a very serious nature, an action of scandal was the course the defendant should have pursued and not have taken the law into his own hands.  The plaintiff did not appear to have suffered any very great bodily injury, but there was the degradation; and if the jury thought that defendant wished to hold the plaintiff up as a marked man, they could take that into their consideration, and give such damages as would compensate the plaintiff for the injury done to his mental feelings, taking care that their verdict did not appear to be the result of any warmth of feeling.  The jury retired about an hour, and returned a verdict for the plaintiff, damages £40.  His Honor certified for a common jury and three counsel.

Counsel for the plaintiff, the Attorney General and Messrs Kerr and Therry: for the defendant, Messrs a'Beckett, Foster and Windeyer.

 

Notes

[ 1]See also Dowling, Proceedings of the Supreme Court, Vol. 147, State Records of New South Wales, 2/3332, p. 188.

See also the libel case of Simmons and Co. v. Smart, Sydney Herald, 26 March 1838; Australian, 27 March 1838; Sydney Gazette, 24 March 1838.

Published by the Division of Law, Macquarie University