Summing-up in $66,000 claim

Press, 14 December 1983, Page 6

Summing-up in $66,000 claim

It was “incredible” that a dispute which arose initially from a 25c levy should ultimately threaten a petrol shortage to the public and involve abuse and alleged assaults, said Mr Justice Roper in the High Court yesterday. His Honour was summing up in a civil claim for damages totalling $66,000 against 11 members of the tanker drivers’ section of the Canterbury’ and Westland Drivers’ Union.

Patrick Martin O’Boyle, aged 46, an unemployed former tanker driver, claimed this amount against the defendants for alleged conspiracy and intimidation against all 11, and assault against five of them. The jury retired at 10.35 a.m. yesterday to consider its decision on the claim, after his Honour had summed up for an hour and 20 minutes. Evidence in the case was heard all last week. Senior counsel for Mr O’Boyle, Mr A. A. P. Willy, and for the 11 defendants, Mr Brian McClelland, Q.C., addressed the jury on Monday. Mr I. Brooks appeared with Mr Willy and Mr P. H. B. Hall with Mr McClelland. All defendants denied liability.

They are Peter Reginald Liggett, secretary of the Canterbury Drivers’ Union, Daryl Collins, former president of the union, Rodney Kennedy Root, Ronald John Rogatski, Murray Allan Rayner, Kevin Maxwell Penn, Roger Frank Carson, Brian Richardson Bennison, Robert William Michael Taylor, William Douglas Lynn, and George Edward Bloomfield.

The claim comprises $5OOO against each defendant for compensatory damages for conspiracy, and $lOOO punitive damages for conspiracy, or $lOOO punitive damages for intimidation, or $lOOO against each of five defendants for assault.

The issues which the jury had to consider covered 10 headings embracing alleged conspiracy, and compensatory and punitive damages under this heading; intimidation, and punitive damages; and assault by five men and punitive damages for this.

The assault claim, against Messrs Lynn, Bennison, Penn, Taylor,' and Root was to be considered if there were no findings of conspiracy and intimidation against them.

In his summing-up, his

Honour reminded jurors that their task was to decide the case solely on the evidence, and with no feelings of sympathy, ill-will, or emotion directed at either the plaintiff or the defendants or anybody else involved in “this unfortunate affair.”

He said some emotional elements had been introduced which served only to cloud the real issues.

The Court was not dealing with the case of a white knight challenging the evil forces of darkness. It was dealing only with a simple civil case, a claim for damages to be decided on the evidence. His Honour said he found some of the evidence “quite incredible,” having regard to the fact that the case involved grown, and presumably mature, men. He said this did not apply to the defendants alone, but some of the conduct might have been more befitting of children.

His Honour said Mr O’Boyle had brought the claim against the defendants and it was for him to prove there had been a conspiracy, and intimidation, and assaults, and which of the defendants were involved.

His Honour said the standard of proof required was on the balance of probabilities.

Dlustrating this, he referred to Mr O’Boyle’s allegation that Mr Rayner had deliberately delayed him at some steps, to give Mr Lynn the opportunity to assault him.

Mr Rayner had claimed that he had merely stopped to pull his socks up. But he did remember this act “for some curious reason.”

His Honour said that if Mr O’Boyle had satisfied jurors that it was more probable than not that Messrs Rayner and Lynn had deliberately “set up” Mr O’Boyle, delaying him while the other assaulated him, it should find for Mr O’Boyle. “Perhaps you may not find that a very difficult decision,” his Honour said. Some issue was made of the nature of the language used by some defendants, His Honour said. He suggested that the matter to consider was not the words themselves, but perhaps the menace that could be behind them and the way they were used at the particular time.

On the question of conspiracy, his Honour said it was quite lawful for men to combine and act together to protect and further their own interests, but it was not lawful if they combined with premeditated motive or object of injuring another.

In the case of the act’s being unlawful, damages might be recovered if damage resulted. Mr O’Boyle had to prove that two or more persons agreed to carry out some unlawful design. He must prove that the predominant purpose was to injure him without just cause, not to protect or further their own interests. If the collaboration was to further the interests of those combining, the fact that damage might also result to another did not make them liable for damages.

The test was not the results which flowed from the men’s actions but what was in the minds of those combining when they acted as they did. The crucial question for jurors was, were they satisfied there was a combination of two or more men with an agreement to act with a common object or purpose and if so, was that object or purpose to protect their self-interest or merely to cause injury or damage to Mr O’Boyle for his attitude?

His Honour said the question of conspiracy required particularly careful consideration so far as Messrs Collins, Rogatski, and Carson were concerned. Their roles seemed to be much less than some others. As a matter of law the

mere fact that a person might stand by observing what he saw as a combination of other persons opposing somebody else but do nothing about it, did not mean that he was a conspirator or agreed with what the other persons were doing.

His Honour defined “intimidation” and said the threats must be of the “or else” variety. The threats or abuse such as assault must be applied to cause Mr O’Boyle injury damage or loss. Mr O’Boyle must prove there was intimidation resulting in damage.

His Honour said the category of assault, which the jury would not have to concern itself with if it found for Mr O’Boyle on the conspiracy claim, should present no problem. “Obviously if one person assaults another he will be liable for damages.”

He said this would include actual assaults, or attempts to apply force. The latter case would include threats which the victim believed on reasonable grounds would result in more serious action.

His Honour traversed the background to Mr O’Boyle’s claim and expressed some disbelief that grown men could have got themselves into a situation in which a levy of 25c a week could have the ultimate effect of threatening a petrol shortage to the public because of strike action, and abuse and alleged assaults. He also asked why Mr O’Boyle should have seen fit to involve his family over some years in an incident which must have blighted their lives. His Honour said it was difficult to see the logic behind the drivers’ striking after not accepting Mr O’Boyle’s letter as an apology. He said Mr O’Boyle continued working and was then called a scab.

Presumably if he also had gone on strike the others would have been free to go back to work, and all the other tanker drivers could have been termed scabs.

Referring to a defendant’s calling Mr O’Boyle “gutless,” his Honour suggested that it took a good deal of guts to stand up alone. Mr O’Boyle had made it clear to Mr Liggett that he had not alleged misappropriation of funds and Mr Liggett accepted that but Mr Rogetski seemed to think an apology was called for, not to Mr Liggett but to the other tanker drivers.

“You might ask what for,” his Honour said. Commenting on Mr Willy’s remarks that matters of principle were involved in the case, his Honour said jurors were not there to change the world. • “We are not freedom fighters. We are here to decide on the facts, not to lay down rules for future conduct of unions,” he said.