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Decisions of the Nineteenth Century Tasmanian Superior Courts

Dale v. Mitchell [1841]

assault, civil action - ship's crew, assault by master

Supreme Court of Van Diemen's Land

Pedder C.J., 8 September 1841

Source: Hobart Town Advertiser, 10 September 1841

The plaintiff in this case was supported by Mr. Stephen, and defendant by Mr. Stewart.

       The action was brought for damages to the amount of £50, for an assault committed on the person of the plaintiff, during the night of the 24th March last, on board the Agnes and Elizabeth, by Captain Mitchell. From the evidence of the several witnesses it appears that between 10 and 11 o'clock on the night in question Capt. Mitchell returned on board his vessel, where the plaintiff was employed as carpenter, and was at the time in question in a state of inebriation in the cabin. Some abusive language passed between the parties, during which Capt. Mitchell ordered Dale on deck, where, after some hesitation, he went. Defendant followed, and shortly after struck him twice on the mouth, which caused him to bleed much, and all but threw him overboard, which he threatened to do, together with his bench. After this, he took either a stick or a rope with which he chastised Dale most unmercifully.

            Mr. Stewart, in advocating his client's case, at the same time, that he owned the defendant had gone rather too far, yet it would require all the talents of his learned friend, Mr. Stephen, to explain why so trumpery an action should have been carried beyond the Police Office, which was intended for frivolous cases, such as these; and he hoped that the jury would not, by their verdict, sanction that the time of the court as well as that of the public should thus be trifled with. - The learned counsel maintained that the plaintiff, whowas in a state of intoxication, had refused to leave the vessel, and not till then did his client strike him.

Mr. Stephen could not understand that the fact of a man's being tipsy would authorise such conduct as that of Captain Mitchell. If it were an understood thing that every man, on becoming intoxicated, should subject himself to a sound drubbing, in a colony where the vice is carried to such an extreme, he would say, if it had the power of checking it for the future, let the beating be a good one, and not undeservedly by the party; but as the law stands at present, it cannot be sanctioned that every man can assume it to himself to inflict such a castigation.

Verdict for the plaintiff. - Damages £20.

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania