CHATEAU TONGARIRO AFFRAY VERDICT

Northern Advocate, 30 January 1936, Page 4

CHATEAU TONGARIRO AFFRAY VERDICT

totalling £212 13/6 were today awarded Richard Cobbe, manager of the Chateau Tongariro, who sued a young Hastings farmer, E. R. J. Seeker, for that amount in the Taumarunui Magistrate’s Court on December 13 last.

The action—the sequel to a party at the Chateau on September 8 last —was heard before Mr R. M. Watson, S.M., in the Taumarunui Court on December 13, and a prominent witness was Sir Standish O’Grady Roche, aide-de-camp to the Governor-General. The hearing lasted all day and until 10 o’clock in the evening. Mr J. A. Gordon, of Taumarunui, appeared for the plaintiff, and Mr Selwyn Averill, of Hastings, for the defendant, Seeker. “I find that the evidence generally 'establishes that, shortly after midnight in the early morning of September 8, 1935, at the Chateau Tongariro, plaintiff received two blows from defendant’s fists, which caused a linear fracture just above the orbital ridge of the left fronto temporal region of plaintiff’s skull and bruising of plaintiff’s brain,” said the magistrate in a written statement.

Lost Control

“I make this finding, particularly from the evidence of the porter, McKone, who said. ‘Plaintiff had quite a prominent mark on his left temple, from which blood was streaming down,’ and the medical evidence tendered to the court, and from the admissions of defendant, who, in crossexamination,' said: Defendant’s Statement. “ ‘During the period I struck plaintiff twice in rapid succession. I struck him about the left cheek bone as far as I could judge. I did not think my blow was higher. I am not certain where I struck the other blow. The first blow may have been an inch higher or lower than the cheek bone. In that period of time, no one else struck the plaintiff.’

“ ‘Plaintiff did not fall on the floor. He did not go down when I struck him. He remained upright. If he received injury during that period it can only have come from blows struck by me. I did not see blood on his face. I saw a mark on his face next morning. It was a swelling of some considerable extent on the left size of his face, from the top of the ear down. It was probably the same mark as the one the doctor saw. I think the doctor will be more nearly correct than I am.’

“For the defence, it was alleged,” said Mr Watson, “that defendant never at any time struck a severe blow, nor a blow which could have been responsible for the fracture; that defendant did not strike plaintiff the blow which plaintiff said he received from the side and /ear of the left side of the head while looking down over the stairway landing, and that defendant acted in self-defence.

What Caused the Fracture! “The only evidence tendered for the defendant in this connection is defendant’s own statement,” continued the judgment, “ T consider it impossible that I fractured plaintiff’s skull with my fist. Such blows as I struck were not heavy blows, just sufficient to keep him off, and were struck for that purpose.’ “I am satisfied that I should not accept this statement. To the contrary there is defendant’s own admission, as quoted above, and, if plaintiff received injury during the period, such injury can only have come from blows struck by defendant. “Defendant’s weight, he states in evidence, is just under 11 stone, but he is also 25 years of age, tall, lithe appearance, whereas plaintiff is 49. I find from the evidence, and particularly from the medical evidence, that the blows which defendant struck plaintiff, or one of them, did, in fact, fracture plaintiff’s skull, apd bruise his brain.

Defendant's Admission

Not Hit From Rear,

“On the evidence, the nearest person to plaintiff and defendant, when plaintiff was injured was Sir Standish O’Grady Roche, who, however, did not see the blows struck that caused plaintiff’s injury. The evidence of this witness, which on this point I accept, makes it improbable, though not, I think, impossible, that plaintiff was hit from the side or rear by defendant, while plaintiff was looking over the bannisters of the stairway landing.” The evidence clearly was that plaintiff was the aggressor after he received the injury from defendant, but Mr Watson was unable to find from the evidence that he was the aggressor before he received injury. The witness Roche was the only witness in the vicinity at the time when the blows were struck, but he did not see the parties at the time, as they were round the corner of the passage from the landing. When Roche went round the corner he found plaintiff and defendant fighting. Plaintiff had then received the injury, and was then the aggressor. if a man out of control going for

Defendant Angry,

Magistrate Awards ToMr. Cobbe [Special to “Northern Advocate.”! TAUMARUNUI, This Day.

defendant and waving his arms could be called an aggressor. Before he received his injury plaintiff pushed defendant out of the way, but he did not believe that he tripped defendant.

“Plaintiff and defendant were, on defendant’s evidence, alone on the landing before Roche came up,” said Mr Watson. “Roche, at this particular time, was, on defendant’s evidence, down on the stairs a bit, and defendant saw him there. According to defendant. a conversation took place on the landing between himself and plaintiff, in which plaintiff referred offensively to defendant and his party. That conversation plaintiff denied. No other witnesses heard the conversation, and I am unable to believe, and consequently unable to find as a fact, that it took place as alleged by defendant. It is about this time, plaintiff said, he was struck.

“After he was struck, plaintiff, on the evidence, lost control of himself, and, on his own statement, lost all sense of he was doing. T have, he said, ‘practically no recollections from then on.’

“Dr Wells said in evidence: ‘A concussed person is hazy as to occurrences leading up to his actions, but it may come back to him after some time. He would not remember the actual blow'.’ After careful consideration of the whole of the evidence, I should, I think, hold that this confusion extends to plaintiff’s recollection of the actual blow or blows which caused his injury, and, in consequence, does not place any of my findings in reference to the receipt by him of his injuries, solely on his evidence. I am, therefore, unable to find as a fact, on plaintiff’s statement, that he received his injuries while looking down from the stairway landing. I prefer to accept defendant’s statement that plaintiff’s injuries were received when plaintiff and defendant were alone in the passage. This, however, does not amount to a complete defence.” A Shove. “In his examination-in-chief defendant says: T backed away from him. Plaintiff followed. I went round the corner of the passage past the lift well. I said tcT plaintiff, ‘Mr Cobbe, I think you should show more respect for your guests, and drels fov dinner,’ in a rather sarcastic voice. I was getting annoyed at his treatment of me. Plaintiff was standing right in front of me, close • up, and the next thing I found myself on the broad of my back on the floor. I was there because he gave me a shove, a pretty hard one. When I found myself in that position, plaintiff was standing over me with his fists up. I sprang up, and he started fighting. I was struck just below the left eye. I struck back at plaintiff, and hit him twice, once on the left side of his face and the other about the head or face. I could not see his back. The blows did not stop him, and he remained on his feet. Roche then appeared, and as soon as he came up I stepped back, as I did not think plaintiff would strike me again with Roche present.’

“In cross-examination, defendant makes the following admission: ‘ln October I said to the police: ‘I sprang up immediately, and 'hit him twice in rapid succession with my fists on the left side of the face.’ That is correct. He was aiming blows at me, and I got two blows in between. I did not mention this to the police in October, probably.’ “Before he received his injury, plaintiff pushed defendant out of the way, but I do not believe that he tripped defendant. Defendant’s fall was largely due to his condition. “In his condition, some minutes after having consumed two generous nips of whisky in rapid succession, and having had liquor previously that evening, defendant would not measure very nicely, or indeed have very exact knowledge or remembrance of where his blows were struck, or the weight of force applied by him,” said Mr Watson. “I accept plaintiff’s statement that before he pushed defendant away defendant shouldered plaintiff down the passage in the direction of plaintiff’s room. This is denied by defendant, but it seems to me exactly the sort of thing a man would do who had shortly before offered two whiskeys to the porters, and, finding them not to be turned from their duty, displayed his resourcefulness to the porters by swallowing both drinks himself. He was, I consider, when he shouldered plaintiff down the passage, without serious intention —and probably with some degree of merriment, for McKone says, he was ‘very merry’—to physically persuade plaintiff to go back to his room. I consider plaintiff was justified in pushing defendant away.

“When defendant fell on his back he would naturally be angry. On his own statement he sprang up immediately and hit plaintiff the two blows, which I have found caused the serious injuries received. The force of the blows, or one of them is, on Dr Fisher’s evidence, indicated by the fact

that they were, or it was, sufficient to provide a fracture, and also to damage the brain.

“It is clear from the evidence that, shortly after plaintiff was struck, defendant now' seriously felt he had struck plaintiff unjustly. I believe the witness Bailey when he says; ‘Defendant apologised to plaintiff for having forgotten himself and striking the plaintiff, and stated he had done the only thing a gentleman could have done —that he had stood with his hands at his side and allowed plaintiff to strike him. Defendant says: ‘As Bailey arrived I put my hands down, and said to Mr Cobbe, I apologise for what I said to you. I offered to let him hit me back. I made that suggestion with a view to try to calm him down.’ In cross-examination, defendant further said: “As far as I can remember, I did not apologise for striking him. Mr Bailey may be mistaken. lam not prepared to swear he is mistaken. If Mr Bailey is not mistaken, I apologise for striking the man! I do not accept defendant’s version of the apology, and it is clear from the evidence of both witnesses that defendant offered to allow plaintiff to hit him back.”

Important Difference. “It will be noticed that there is the important difference between defendant’s statement in examination-in-chief and his statement in cross-examina-tion, that in the former he says plaintiff hit him first, just below the left eye, and in the second that he sprang up and hit plaintiff (who, he adds, was aiming blows at him) twice in rapid succession. I prefer to accept the lateV statement as correct, and to find that defendant hit plaintiff first.” Immediately before defendant struck plaintiff, plaintiff gave defendant a push, as a result of which defendant fell on his back, continued the magistrate. He did not find from the evidence that defendant was drunk at the time, but the evidence was that he had had a considerable quantity of intoxicating liquor that evening. On his own admission, he had a cocktail before dinner, two glasses of beer at dinner, a whisky and soda at about 9.30 to 10 p.m., and two whiskeys, which he first offered to the two hotel porters who gave evidence, and then consumed himself in quick succession shortly before the occurrence. The magistrate said he believed l the evidence of the two porters that these were generous nips, and that defendant showed the effects of liquor, defendant further admitted that he told the police in October that he thought he had a whisky when they all went up about 11.15 p.m. to room No. 1. That statement he later said was incorrect.

Unjustified Attack. The magistrate was unable to find that defendant, in striking plaintiff, acted in self-defence. Defendant hit plaintiff without any necessity for so doing, and, further, even if there were necessity (which he was unable to find from the evidence), defendant struck plaintiff with a degree of force which was unreasonable, being more than should have been necessary for the purpose of defending himself.

No Provocation,

Provocation was not raised as a defence, and he was unable to find from the evidence that there was provocation of such a nature as to justify or afford mitigation in respect of the assault complained of. One who committed an unjustifiable assault, and the magistrate found that this was an unjustifiable assault, upon another, was responsible for the consequences directly caused thereby, even though such consequences were unforeseen, or were the more serious by reason of some constitutional peculiarity of the person assaulted, such as an unusually thick skull. “Therefore, plaintiff is entitled to recover.” declared Mr Watson. “He is entitled, in the first place, to compensation for the actual pecuniary loss suffered by him by reason of the injury. The hospital and . medical expenses are therefore allowed as proved, at £l2 13/6.”

“As to general damages, Dr. Wells says; The probable result of this injury will be a long period of mental impairment and probable inability to indulge in the process of thought to the normal extent, or to carry out suitable .work with the efforts of the normal uninjured person. “Engagements in these functions would probably produce headache, and this state of affairs may persist for any time or period from’ one year upwards. I think it is advisable and necessary for the plaintiff to resign his position at the Chateau.”

The Judgment. “Dr. Fisher’s evidence is: T gave and give it as my opinion that he (plaintiff) could not resume his work at the Chateau within a year, possibly longer.’ I consider that, in view of the uncontradicted medical evidence, the sum of £2OO claimed by plaintiff by way of general damages is not excessive, and I allow it accordingly. Plaintiff received an allowance on retirement from the public service, but, after consideration of the circumstances under which, the evidence discloses, that allowance was made, I do not consider plaintiff’s receipt of the allowance should affect the comparatively small amount of damages sued for.”