COMMONWEALTH v QUINCE
68 CLR 227(Judgment by: McTIERNAN J)
Between: COMMONWEALTH
And: QUINCE
Judges:
Latham CJ
Rich J
Starke J
McTiernan JWilliams 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
Judgment by:
McTIERNAN J
The statement of claim in this action alleges that the Commonwealth was the employer of a member of the Royal Australian Air Force; that he was injured by the negligent driving of a motor vehicle; that the respondents are responsible for this negligence; and that by reason of the injury thus done to the airman, the Commonwealth suffered pecuniary loss consisting of the airman's pay from the time of the accident until his discharge from the service, during which time he was a patient in hospital, the medical and hospital expenses which the Commonwealth incurred in providing treatment for the injury, the pension which it paid him since his discharge, and a further sum, representing the value of the airman's uniform, which was Commonwealth property destroyed in the collision. The Commonwealth claims damages from the respondents for this pecuniary loss and they on their part deny liability. The statement of claim does not in terms allege that the Commonwealth sustained the loss of the service of the airman by reason of the injury. In fact it did totally incapacitate him and the Commonwealth did sustain such loss.
The question is whether the action per quod servitium amisit lies at the suit of the Commonwealth to recover damages for the loss it sustained by reason of the injury caused to the airman. The gist of this action is the loss of the service of a servant, but the damages are at large, the plaintiff being entitled to recover what is in the circumstances of the case a reasonable amount (Hall v Hollander; [F77] Grinnell v Wells; [F78] Martinez v Gerber; [F79] Hodsoll v Stallebrass [F80] ).
The facts of the present case are hardly distinguishable from the facts in the case of Attorney-General v Valle-Jones. [F81] The information in that case alleged that the injured aircraftsmen were in His Majesty's service and that he was deprived of their services by reason of the injuries caused to them by the defendant's negligence. The defendant by his plea admitted these allegations and disputed only that the damages should be awarded according to the measure claimed in the information. The Crown was awarded damages according to this measure. In the course of his reasons for judgment MacKinnon J. said that the action per quod servitium amisit was based upon "the old common law principle that a master who has, by the tortious act of a third person, been deprived of the services of his servant may claim damages in respect of that deprivation against the third person who has brought it about". [F82]
In that case the defendant did not raise the question whether the action per quod servitium amisit lies for the loss of the service of a member of the Royal Forces. It does not appear to have been settled that the action did lie in those circumstances, for Lord Sumner had expressed strong doubts on the question, in Admiralty Commissioners v S.S. Amerika. [F83] He used these words: "No claim has been made and no evidence has been given relating to damage sustained by the appellants in losing the further services of those who were drowned, and 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."
The Air Force Act 1923-1941 provides for the establishment, organization and government of the Royal Australian Air Force and that it is to be part of the Defence Force of the Commonwealth. The Act makes applicable to the Air Force a number of sections of the Defence Act 1903-1941 and empowers the Governor-General to make regulations for securing its discipline and good government.
The injured airman enlisted in the Royal Australian Air Force and took the oath of enlistment. He thereby promised to serve the King in the Air Force for the duration of the war and twelve months thereafter, to resist the King's enemies and to cause his peace to be maintained and in all matters appertaining to his service, faithfully to discharge his duty according to law. The airman was bound under the regulations to serve according to the tenor of the oath.
Lord Sumner examined in the Amerika Case [F84] the basis of the action per quod servitium amisit. He said it depended on a special right of the master in relation to his servant. He quoted the following statement by Tindal C.J. in Grinnell v Wells: [F85] "The foundation of the action by a father to recover damages against the wrongdoer for the seduction of his daughter has been uniformly placed, from the earliest time hitherto, not upon the seduction itself, which is the wrongful act of the defendant, but upon the loss of service of the daughter, in which service he is supposed to have a legal right or interest. Such is the language of Lord Holt in Russell v Corn, [F86] and such the opinion of the court in the earlier case of Gray v Jefferies, [F87] with reference to an action by a father for a personal injury to a child, which stands precisely on the same footing. See also Randle v Deane. [F88] It has, therefore, always been held that the loss of service must be alleged in the declaration, and that loss of service must be proved at the trial, or the plaintiff must fail. See Bennett v Alcott. [F89] It is the invasion of the legal right of the master to the services of his servant, that gives him the right of action for beating his servant; and it is the invasion of the same legal right, and no other, which gives the father the right of action against the seducer of his daughter."
Lord Sumner said [F90] that in this passage Tindal C.J. dealt with the most artificial aspect of this cause of action. Lord Sumner pointed out that the wrong which is the subject this action per quod servitium amisit approximates nearly to wrongs to property. He further said: "It is the loss of service which is the gist of the action, and loss of service depends upon a right to the service, and that depends on the contract between the master and the servant". [F91] His Lordship added that it was anomalous that the action should exist at all and that it appears to be a survival from the time when service was a status. [F92] It will be noticed upon reference to the same case [F93] that Lord Parker accounted for the existence of this right of action in a similar way.
In Fisher v Oldham Corporation, [F94] McCardie J. said that the action "rested on the old rule that a master has some sort of property in the service of one who is a servant, or even a quasi servant. The rule is a highly artificial one." Professor Holdsworth in his History of English Law, 2nd ed. (1937), vol. VIII., p. 429, describes the basis of the action as a "quasi-proprietary interest" which the master has in the servant's service.
It appears therefore that the right for the invasion of which the action per quod servitium amisit lies is a right of a proprietary nature and that the wrong which is the subject of the action approximates to a wrong to property. It would be necessary to decide in order to arrive at the conclusion that the Commonwealth is entitled to maintain this action, that a right of a proprietary nature in the services of the airman arises from his engagement for service.
The relation of master and servant is in modern law created by contract. It is the contractual relation of master and servant which carries on, for the purpose of this action, the idea which was connected with the relation of master and servant, when it was based on status, that the master had a real or proprietary right in his servant's services. It seems to me that there is very great difficulty in saying that the master's proprietary right could arise from anything except a contract or supposed contract creating the relationship of master and servant. The engagement into which the injured airman entered upon his enlistment was not a contract. It was an engagement or promise on his part only. The Crown did not on its part promise or engage to hire or employ him in the service. Legal efficacy is given to the airman's engagement for service by the Act and the regulations. Neither authority nor principle requires that the artificial rule that a master has a right of a proprietary nature in his servant's service should be extended to a relation which is not created by a contract between a master and a servant. Besides, the services which a master hires a servant to perform for him, are so different in nature from those which the airman by his enlistment engaged to render to the King that it is wholly inappropriate to say that an interest of a proprietary nature could exist in the airman's services. His enlistment was an engagement for public service: for the defence and security of the community. As public service it was "for the public benefit" or the "good of the public" and could not at common law be the subject of a contract consisting of mutual promises (Dunn v The Queen [F95] ). These services are on a different plane from those which may at law be the subject of a contract or a supposed contract of hiring and service between a master and a servant.
The value of the services lost to a master because of injury done to his servant may be measured by the remuneration which is given in return for such services. But a soldier's pay is not a criterion of the value of his services. This consideration further shows the great difficulty of extending the action per quod servitium amisit to the loss of the services of a member of the defence forces.
In my opinion the appeal should be dismissed.