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Scabby sheep at Walcha

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Monday 3 October 1853, The Sydney Morning Herald

LAW INTELLIGENCE.

SUPREME COURT.- Nisi Prius Sittings. Thursday, Friday, and Saturday.

Before Mr. Justice Therry and a special jury of twelve.

HUTH V. JAMIESON AND ANOTHER.

An action on the case to recover damages for injuries alleged to have been sustained by plaintiff in consequence of defendants having negligently permitted their diseased flocks to stray upon his run. Plea, the general issue (not guilty).

Counsel for plaintiff, the Solicitor-General and Mr. Darvall ; attorneys, Messrs. R. J. and G. Want. Counsel for defendant, Messrs. Foster and Broadhurst ; attorney, Mr. Iceton.

The plaintiff in this case, Mr. Frederick Huth, was resident in England (a London merchant) ; the action being really brought by his Sydney agent, Mr. Challis, of the firm of Flower, Salting, and Co. The defendants were Messrs. Jamieson and Connel, of New England. The plaintiff was the proprietor of a run called Europambela, in the New England district, and the defendants had an adjoining run, called Walcha. The complaint which formed the basis of this action was that scabby sheep which had been kept upon the Walcha run had been negligently suffered to stray from time to time upon the Europambela run, until the sheep upon the latter became also diseased and the run itself tainted. The defence was substantially this-that the disease had been transferred to Europambela not in consequence of any negligence on the part of the defendants or their servants, but in consequence of the Europambela shepherds having repeatedly permitted their flocks to stray within the boundaries of the Walcha run and to mix with the Walcha sheep. The case depending so much on either hand upon a detailed statement of circumstances, the evidence was exceedingly voluminous and to a great extent contradictory, but the main facts of the case may nevertheless be very briefly stated.

The first act of negligence of the kind declared upon was stated by the pleadings as having taken place in February, 1851, and all evidence as to the straying of flocks, &c, was restricted to the period subsequent to that date, although matters of prior occurrence were occasionally and incidentally touched upon. The management of the plaintiff’s run had been vested since 1837 in Mr. Thomas Rusden, who was examined as a witness. According to the evidence of this gentleman, and of other witnesses, the Europambela sheep had been sound until March, 1851 ; although long before that time diseased sheep from the Walcha run had strayed beyond their boundaries, sometimes singly or in small parties, and sometimes in considerable numbers. This Walcha run had been taken possession of by the defendant Jamieson and his then partner, Mr, McKenzie, in 1845, at which time both the run and the flocks upon it were infected, and the scab had never afterwards been got rid of. After the disease made its appearance among plaintiff’s flocks, in March, 1851, it progressed rapidly, notwithstanding that free recourse was had to the boiling pot in order to stay it. According to Mr. Rusden, 14,500 sheep were thus sacrificed, and produced to the proprietor not more than about £1000 ; whereas their value at 11s. per head would have been nearly £8000. Other witnesses gave evidence which would make the amount of damages less than this, and in point of fact, they were only laid in the declaration at £5000. None other of the neighbouring stations had disease upon them at the time in question, although there had been disease upon some of them at other times. There had been remonstrances about the presence and alleged straying of these diseased sheep of the Walcha run, and on one occasion a whole flock had been destroyed upon the boundary by a neighbouring squatter and a subordinate officer of the Europambela run. Some legal proceedings, criminal and civil, arose out of this act, to which it is unnecessary to advert here, although they were incidentally alluded to in the trial of this case, without having any real and substantial bearing upon it. Defendants’ case was, that it was this very trespassing which had produced the mischief, and that when the plaintiff had thus contributed to his own wrong, it was impossible for the Jury to find a verdict for him in a case of this kind, where it was necessary, in order to warrant such a finding, that a long course of negligent conduct by defendants should have produced the injuries declared upon.

His Honor told the Jury that the principal question for their determination was, whether the injuries to plaintiff’s station and sheep, and the loss which had resulted from them, had been occasioned by the negligence of the defendants, or their servants; or whether they had been the result of plaintiff’s own wrong doing, by the trespassing of his shepherds and their flocks on the Walcha run. But although this plaintiff, as represented by those in charge of his property, might have been partially in fault, and might have contributed in some degree to his own injury, still, if this injury had been occasioned to a great extent by the trespassing of defendants’ flocks, the plaintiff would be entitled to a verdict, with damages proportionate to the share which this trespassing of the Walcha flocks had had in causing the injury thus sustained ; and upon this principle-that he would thus have sustained tome injury which he could not, by the exercise of ordinary care, have guarded against.

The Jury, after having retired for about ten minutes, found a verdict for the plaintiff, damages £5000.

This being the last case for trial, the Court adjourned sine die.

[The criminal sittings at Darlinghurst Court House commence at ten o’clock this morning.]

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Written by macalba

October 18, 2010 at 8:07 pm

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