COMMONWEALTH v QUINCE
68 CLR 227(Decision by: RICH J)
Between: COMMONWEALTH
And: QUINCE
Judges:
Latham CJ
Rich JStarke J
McTiernan J
Williams J
Subject References:
Workers' compensation
Injury to member of defence forces
Relationship between Crown and member of defence forces
Damages
Legislative References:
Air Force Act 1923 No 33 - the Act
Air Force Regulations 1927 SR No 161 - r 31; r 36; r 94; r 95
Judgment date: 25 February 1944
MELBOURNE
Decision by:
RICH J
In this case, it has been found that the male defendant, by his negligence, injured an airman of the Royal Australian Air Force. The injury was sustained on 7th October 1941, and the airman was discharged from the Air Force on 22nd December 1942. The Commonwealth paid him, in respect of the intervening period, the sum of PD168 8s., this being at his regular rate of pay. He also received in military hospitals during the period, in respect of his injuries, hospital treatment the value of which is alleged to be PD286 2s. 1d. After his discharge, he received further hospital treatment which is alleged to have cost PD72 19s. 7d. He was paid by way of pension up to 30th June 1943, a sum of PD60 4s. In addition, certain clothing worn by the airman at the time of his injury valued at PD1 19s. 7d., and alleged to be the property of the Commonwealth, was destroyed. In these circumstances, the Commonwealth claimed to recover all these sums from the defendant, basing its action upon the right of a master to recover damages in respect of the loss of the services of a servant through the act of a wrongdoer. A verdict was obtained for the sum of PD1 19s. 7d. claimed in respect of the injury to clothing, which constituted a separate cause of action (Brunsden v Humphrey [F28] ); but the rest of the claim was rejected, and it is in respect of this that the present appeal has been brought.
It becomes necessary, therefore, to consider in what circumstances, when a person has become incapacitated through a wrong done to him by another, a third party who suffers damage through being deprived of the injured person's services may himself maintain an action against the wrongdoer. As a general rule, a person is liable for damage caused to another by his carelessness only when it amounts to negligence, that is, when he owed a duty to the other to be careful and the damage was the proximate result of failure to perform the duty; and the mere fact that the injury prevents a third party from getting a benefit from the person injured which, but for the injury, he would have obtained does not invest the third party with a right of action against the wrongdoer (La Soci?e Anonyme de Remorquage ??ce v Bennetts; [F29] Admiralty Commissioners v S.S. Amerika; [F30] Wright v Cedzich [F31] ). But to the latter rule there is an exception. If a person is in fact rendering service to another of a kind that is performed under a contract of service, and sustains injury, through the negligence of a third party, which prevents him from continuing to render the service, the person whom he was serving may recover from the wrongdoer compensation for the damage which he has sustained through the loss of service. If service was in fact being rendered, it is immaterial that no binding contract of service was in existence (Bennett v Allcott, [F32] at p. 91]; Sykes v Dixon, [F33] at p. 1377]; Martinez v Gerber; [F34] Cox v Muncey, [F35] at p. 506]). It is for this reason that a father may recover damages for loss of service occasioned by the seduction of a daughter who is rendering him, actually or constructively, domestic service, notwithstanding that no contract of employment exists between them. The exception is of great antiquity in English law. It became established at a time when the head of a household was regarded as having a quasi-proprietary interest in the members of his family, his apprentices, his hired servants, and their services (Admiralty Commissioners v S.S. Amerika; [F36] Holdsworth, History of English Law, 2nd ed. (1937), vol. VIII., p. 429; Wright v Cedzich [F37] ); but, except in a recent case which it will be necessary to consider later, it appears never to have been applied except to persons serving under a contract of service or in fact rendering services such as would be given under such a contract.
Since the present claim is in respect of the loss by the Commonwealth of the services of an airman, it is necessary now to consider the relationship between the Crown and those who render it service whether military or civil. In this connection, it is necessary to distinguish between the holders of public offices created by charter or statute in respect of which quo warranto will lie, and the relationships arising from the mere fact that a person is de facto engaged in the service of the Crown (Darley v The Queen, [F38] at pp. 1521, 1522]; Evans v Donaldson [F39] ). Occupants of the former are protected in their offices by the prerogative writs, but the Crown's relation to the latter is not that of master and servant, and they possess no rights against the Crown justiciable in courts of justice unless such rights have been conferred upon them by statute (Gould v Stuart; [F40] Reilly v The King; [F41] R. Venkata Rao v Secretary of State for India; [F42] Fletcher v Nott [F43] ). It was laid down by Lord Esher M.R., in Mitchell v The Queen [F44] that "all engagements between those in the military service of the Crown and the Crown are voluntary only on the part of the Crown, and give no occasion for an action in respect of any alleged contract. ... It has been decided over and over again that, whatever means of redress an officer may have in respect of a supposed grievance, he cannot as between himself and the Crown take proceedings in the courts of law in respect of anything which has happened between him and the Crown in consequence of his being a soldier. The courts of law have nothing whatever to do with such a matter." This rule is just as applicable to persons in the civil as in the military service of the Crown, in the absence of some statutory provision to the contrary. "The terms on which persons in the civil and military services were employed were entirely apart from any form of contract which could not be altered without the consent of both parties" (Kynaston v Attorney-General, [F45] at p. 301). It follows that the Crown has power to dismiss without notice any person so engaged, that any stipulation which purports to restrict this power is void and of no effect (Dunn v The Queen; [F46] Denning v Secretary of State for India [F47] ). and that at common law no action can be maintained by any person so engaged for salary or wages claimed from the Crown, because there is no contractual debt (Mulvenna v The Admiralty, [F48] at pp. 859, 860; Lucas v Lucas [F49] ).
It is evident from the authorities to which I have referred that the facts that the service which is rendered to the Crown is not given under contract, and that no action could be maintained against the Crown in respect of it, would not of themselves prevent the Crown from suing for being deprived of the service through the wrongdoing of a third party. But a de facto relationship of master and servant is essential (Admiralty Commissioners v S.S. Amerika [F50] ), and the real question is whether the service which was in fact being supplied, and was interrupted, was of the kind supplied under a contract of service. In Tobin v The Queen [F51] it was said by the Court of Exchequer, in relation to the question whether the Crown was liable for the acts of a captain in the navy, that the supposed analogy between this relationship and that of master and servant failed; and in Admiralty Commissioners v S.S. Amerika [F52] Lord Sumner, in relation to the question whether the Crown could claim for damage sustained through losing the services of seamen in the navy, said: "So different both in its nature and its incidents is the service of the seamen of His Majesty's Navy from the service of those who are in private employment that it may be questioned whether in any case an action per quod servitium amisit could have been brought at all".
By ss. 2 and 4 of the Air Force Act 1923, as amended by the Act No. 74 of 1939, it is provided that members of the Air Force may be required to serve for training or any service required, by or under that Act, to be performed by any member of the Air Force whether on land, sea or in the air. The relations of the Crown and members of the fighting forces are determined and governed by statutes and regulations. They have no real analogy to those of private persons who stand to one another in the relation of master and servant, de jure or de facto : Cf. Davies v Littlejohn, [F53] at pp. 183, 184. In my opinion, the services rendered to the Crown by members of those forces differ in kind from those rendered by a servant to a private master under a contract of service, and there is no principle upon which the Crown can recover in an action per quod servitium amisit in respect of the loss of such services.
So far as I am aware, the only other case in which such a claim has been preferred is Attorney-General v Valle-Jones, [F54] in which the Crown recovered damages for the loss of the services of two aircraftsmen of the Royal Air Force who had been incapacitated through the negligence of the defendant. In that case, however, the question whether such a claim was actionable at all was allowed to go by default. The right of the Crown to sue was not disputed, and the only question raised was whether, having regard to the extreme precariousness of the rights of persons engaged in the service of the Crown, any benefits which the Crown might have given them were not ex gratia and therefore not recoverable. This is clear from the remark of MacKinnon J.: "I think it necessary to bear in mind that the defence in this case is in substance that the plaintiff cannot recover because he has unnecessarily and unreasonably incurred or inflated his damages". [F55] In these circumstances, I am of opinion that this case cannot be regarded as constituting even a persuasive precedent for the point which falls to be determined in the present appeal.
For the reasons which I have stated, I am of opinion that the appeal should be dismissed. I think it better to express no opinion as to whether, in the case of Crown servants rendering services of a kind rendered by employees to private employers, the type of action here in question is maintainable, or as to the correctness of the rulings of MacKinnon J., [F56] with respect to the damages recoverable.