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

Bryan v. Polack (No 2) (1842) NSW Sel Cas (Dowling) 517; [1842] NSWSupC 66


Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 10 November 1842

Source: Dowling, Select Cases, Vol. 6, S.R.N.S.W. 2/3464, p. 298.

Trespass for debauching the plaintiff's daughter and servant, per quod servitunur amisit. Plea not guilty.*

At the trial before Burton J. and two assessors on the 28th July last, it appeared in evidence that the plaintiff had allowed his daughter, a girl of about 16 years of age, to leave his family and live with the defendant, who at the time was married to and cohabiting with another daughter of the plaintiff. She had left part of her clothes at her father's house and had other parts at the defendant's. The defendant debauched and got her with child whilst residing with him as part of his family for about 10 weeks. Before she went to live at the defendant's she had been residing at her father's and had done work for her mother. There was no proof that the girl had performed any act of service for her father during her residence with the defendant, but there was nothing to shew that he might not at any time have withdrawn her from the defendant's house. After the seduction the plaintiff took her home, where she remained two months. During the time she lived at the defendant's she told him she would go home (her father living in Sydney , not far from the defendant's house) and after the seduction but before she gave birth to a child she returned to her father.

It was contended that under these circumstances the action was not maintainable without proof of actual service performed by the girl for her father at the time of the seduction, or at least an immediate liability to perform acts of service. Now, here there was not only no evidence proved, but the absence of an immediate capacity or liability to serve, for she was living apart from the father, out of his direct control. The mere relation of parent and child was not sufficient without proof of service, or an immediate liability to perform service as part of his family. The gist of this action was loss of service, and none, nor an immediate liability to serve, being proved the action was not maintainable. The learned Judge ruled that the girl being a minor and by law under her father's control, and living with his consent at the defendant's house, and no contract of any kind interfering with his authority, there being the animus revertendi, the action was maintainable without any proof of actual service at the time of the seduction. Under this direction the assessors upon the evidence found a verdict for the plaintiff, damages £500.

A motion having been made, on the ground that the action was not maintainable, to enter a nonsuit or to obtain a new trial for excess of damages. The case came on for argument on a former day when the Court reserved its judgment.

Dowling C.J. The case was argued with great ability by the learned counsel on both sides, so much so that the Court cannot refrain from the expression of its admiration of the satisfactory manner in which the points were discussed. Almost every reported decision bearing upon this species of action was brought under the review. After carefully looking into all the authorities, we find nothing to restrain us from holding that if a girl is living apart from her father, in another family, with an intention of returning and is still under the lawful control of her parent (no contract with another person interfering with his parental authority), and he has an immediate right to her services, if he thinks proper to exercise it, and she is debauched during such separation, an action will lie at the suit of the father against her seducer without proof of actual service.

There is no doubt that the foundation of the action by a parent for debauching a child is the loss of her services of which he is deprived by the tortious conduct of the seducer. It is conceded that the loss of actual service, if not absolutely, is little more than a fiction; for the very lightest act performed by a child for a parent in the nature of service whilst part of his family, though in reality no more than an act of filial attention, would be sufficient to support the action. But it was contended that the mere relation of parent and child without the capacity to serve and the immediate liability to serve, as part of the father's family at the time of the seduction, would not be sufficient. It was admitted however, that if this girl went merely on a visit, with the father's consent, to the defendant's house, with the animus revertendi, the action would be maintainable.

The whole case therefore hinges upon the question whether this girl could be considered merely as a visitor at the defendant's house. It is true that there was some slight evidence of the plaintiff having turned the girl away and ordered her not to return from the defendant's. If this could have been regarded as a dereliction of his child and an abandonment of the right to her services, why it would be difficult on the authorities to say that the action could be maintained; but upon looking at all the circumstances, that can be regarded only as the mere ebullition of temporary possession, and not as a deliberate act of abandonment.

That difficulty out of the case, the other circumstances are these: that the girl being a minor, goes to live in the defendant's family with the permission of the father, not under any contract of service with the defendant; that within 10 weeks of her seduction she was doing work for her mother in her father's house; that she speaks of returning home to her father who lived close by, so that she might have returned at any moment; that part of her clothes remained at her father's; that throughout her evidence she speaks of her father's as "home"; that there is no specific time mentioned for her sojourn at the defendant's; that the plaintiff had a right to her services at any moment of time throughout her sojourn; that the plaintiff had a right to take her way at anytime; and that the defendant had no right to detain her. Her position therefore in the defendant's family can under these circumstances be regarded only as that of a temporary visitor and not such in its nature as to render her the less a member of her father's family or less under his uninterrupted control.

In all the cases cited, there was some disqualifying circumstances fatal to the action, the utter incapacity of the child to perform service, the inability to serve by reason of service contract entering with parental control or a suspicion of it, from causes irrespective of the general principle upon which this case is to be decided, namely that the girl was a sojourner in the defendant's family by the father's consent with the animus revertendi, and was at anytime liable to be called upon to perform service, and the parental authority was not suspended or interfered with by any contract inconsistent with his authority. It is unnecessary to push the principle any farther than the present case requires, but whether the father lived nearer to or farther from his child at the time she was seduced would make very little difference as to his right of action, indeed it would be dangerous to hold that mere distance ought to enter into consideration, if the other circumstances forming the basis of our determination were satisfactorily established. It is enough to say that the ground on which the learned Judge held this action to be maintainable, is not contravened by any authority and is consistent with previous decisions.

The only remaining question is whether the Court ought to grant a new trial on the ground of excess damages. In determining that question the Judges are not to be governed by what might be their verdict were they the constitutional tribunal for assessing damages. The rule by which the Court is governed by on such a question is not whether the damages are excessive, but whether they are so outrageous and so far beyond all reason as at once to startle the mind with their injustice. It is true that this case was tried by assessors and not by a jury; but by the constitution of this Court, assessors stand in the place of a jury. The suitors have a right to elect by which tribunal they will have their cause tried. The defendant might have had a jury, but he chose to have the cause tried by assessors. The same rule applied to both tribunals on a question of damages. Each is the constitutional tribunal for assessment in case of injury. Doubtless there were some demeritorious circumstances in the conduct of the father, in bringing forward his daughter as a witness and exposing her shame after she had become married to another person. These were brought under the notice of the assessors by the learned Judge.

In cases of this kind it is impossible to establish any standard by which damages are to be accurately measured. The mere loss of service seldom forms an ingredient in the estimation of damages, but regard is had rather to the injury to the father's feelings, the affect of the disgrace brought on his family where there are other daughters and also to the circumstances under which the seduction took place. Here there was a gross breach of that confidence which a father naturally reposes in his own son-in-law, trusting that his younger daughter's chastity would be safe from assaults under such seeming protection. It is impossible to dive into the precise grounds on which the assessors proceeded. The only question for us to determine is whether the damages are so fragrantly outrageous as to shock the mind with their injustice. It requires a strong case to interfere with the province of a jury or assessors, and as it does not appear to us that the damages in this case are so utterly inapplicable to the circumstances developed on the trial and as the case was fairly left to the assessors, suitable comments on the demerits of the plaintiff, we think the verdict ought not to be disturbed.

Rule refused.

Published by the Division of Law, Macquarie University