Between: COMMONWEALTH
And: QUINCE

Judges: Latham CJ
Rich J
Starke 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

MELBOURNE

Judgment by:
WILLIAMS J

This is an appeal from the Supreme Court of Queensland. The facts may be stated shortly as follows:On 17th July 1941 R. H. Rowland became a member of the Royal Australian Air Force. This Force is constituted under the provisions of the Air Force Act 1923-1941 as part of the Defence Force of the Commonwealth. At the time of his enlistment Rowland took an oath well and truly to serve our Sovereign Lord the King in this Force for the duration of the war and for twelve months thereafter or until sooner lawfully discharged, dismissed or removed, and to resist His Majesty's enemies and cause His Majesty's peace to be kept and maintained, and in all matters appertaining to his service faithfully to discharge his duty according to law.

On 7th October 1941, Rowland was seriously injured by the negligence of the defendants, his leg being broken in two places.

From the date of the accident until 22nd December 1942, when he was discharged and granted a pension of 6s. per day, Rowland remained in the Air Force but was unable to return to duty.

Between 6th October 1941 and 22nd December 1942 the Commonwealth incurred the following expenditure in connection with Rowland's accident. He was a patient, at first at Rosemount Repatriation Hospital, from 7th October 1941 to 17th August 1942, and later at Greenslopes Military Hospital, from 17th August to 22nd December 1942. Both these hospitals are organized and maintained by the Commonwealth, the former being managed and controlled by the Repatriation Department and the latter being a military hospital. The Commonwealth paid Rosemount Hospital PD209 18s. 1d. in respect of charges which varied from 12s. 1d. to 14s. 9d. per day, while the expenses at Greenslopes Military Hospital at the rate of 12s. per day amounted to PD76 4s. The damage to Rowland's air force uniform, socks and shoes, caused by the accident, amounted to PD1 19s. 7d. Between 7th October 1941 and 22nd December 1942 the Commonwealth paid Rowland at the rates fixed by statute from time to time for his rank, varying from 5s. to 6s. 6d. per day, a total of PD134 8s., and also paid him PD34 deferred pay when he was discharged. These expenses total PD456 9s. 8d.

The Commonwealth also claimed an amount of PD25 10s., being at the rate of 6s. per day, from 23rd December 1942 to 17th March 1943 in respect of the pension granted to Rowland, but this claim was not pressed before us, so that the questions for decision are whether the Commonwealth as the employer of Rowland can sue the defendants for the damage it has suffered per quod servitium amisit; and, if it can, whether the Commonwealth is entitled to judgment against the defendants for the sum of PD456 9s. 8d.

The action was tried by Philp J., who held that the Commonwealth was only entitled to succeed in respect of the sum of PD1 19s. 7d. for the damage caused to Rowland's uniform, socks and shoes, and that otherwise the action failed. At the end of his judgment his Honour summarized his reasons for reaching this conclusion as follows:"To sum the matter up in my view the action based on loss of services for wages and hospital expenses before discharge fails because (1) it is essential to such an action that there should be a contract bringing about the relationship of master and servant with the usual incidents of that relationship. (2) That the services of the airman were made due by statute and I feel that I cannot extend the anomaly of a master's right to sue for loss of contracted services to a right in the Crown to sue for loss of statutory services. I think it proper to leave to the legislature the responsibility for introducing such an action. (3) That in any event the payment of these wages and hospital expenses on the part of the Crown was purely voluntary and that as a matter of cold law though not of humanity or policy the Crown should have immediately dismissed the airman on his being injured particularly since the nature of the injury must or should have made it immediately plain that the airman was permanently incapacitated or likely to be useless as a servant for a long period."

It is from this decision of Philp J. that the plaintiff, the Commonwealth of Australia, has appealed to this Court.

It is clear from the authorities that the action per quod servitium amisit only lies where the relation of master and servant exists, so that, as the result of the defendant's tort, the master loses the benefit of the services of his servant. The damage, which is the gist of the action, is the loss by the master of these services, in which he is supposed to have a legal right or interest, so that a general allegation of service is sufficient without stating that the servant was hired or that he was to receive any wages or salary (Martinez v Gerber; ^[F96] Grinnell v Wells, ^[F97] at p. 423]). Service at will is sufficient: an actual binding contract of service is not necessary: so that the father of a family in respect of such service as his daughter renders him from her sense of duty and filial gratitude stands in the same position as an ordinary master (Evans v Walton ^[F98] ).

Apart from statute the employment of servants by the Crown, naval, military or civil, is at the will of the Crown, so that the Crown is entitled to dismiss them at any time without notice. They are dependent upon the bounty of the Crown for the payment of their remuneration, which does not create a debt, so that they are unable to sue the Crown if the Crown refuses to pay them (Lucas v Lucas ^[F99] ).

The only relevant statutory provisions to which we were referred in the present case were the following:In the case of officers in the Royal Australian Air Force, reg. 32 of the Air Force Regulations, which provides that the appointment or promotion of an officer under the regulations shall not create a civil contract between the King or the Commonwealth and the officer; and reg. 72, which provides that an officer shall hold his appointment during the pleasure of the Governor-General, but the commission of an officer shall not be terminated except for cause. In the case of both officers and men, reg. 31, which provides that any person who has been a member may, after having ceased to be a member, recover from the Commonwealth by suit in any court of competent jurisdiction any moneys which under his engagement or by any agreement with the Commonwealth are due to him. And in the case of men, reg. 109, which provides that (1) the Air Board may dispense with the services of an airman at any time; (2) the competent authority to authorize a discharge shall be the Air Board; and (3) the airman's commanding officer shall be competent to confirm his discharge. All these regulations are contained in Statutory Rules 1927 No. 161. Thus the original immunity on the part of the Crown is now considerably abridged by the regulations. An officer can no longer be dismissed at pleasure (Reilly v The King ^[F100] ), and both officers and men can recover their pay by action after they have ceased to be members of the Air Force.

At the time of the accident, therefore, the Commonwealth could have discharged Rowland at any time; and, whilst he remained a member of the Air Force, could have refused to pay him, and he would have had no legal redress. But upon his discharge he could have recovered any pay that was due to him.

Rowland was not an officer, so that there is no express statutory provision that his enlistment is not to create a civil contract between him and the King or the Commonwealth. But it is immaterial to decide whether his relationship to the Crown was in any respect contractual.

The important consideration is that Rowland upon enlistment bound himself absolutely to serve the Crown for the period of the war and for twelve months thereafter unless the Crown exercised its right to dismiss him in the meantime. He was therefore in the same position with respect to his obligations as he would have been if he had had an enforceable contractual right against the Crown to remain in its service for that period and during his service to receive the pay appropriate to his rank.

In Clode, Administration of Justice under Military or Martial Law, 2nd ed. (1874), at pp. 72-82, where the obligations to the Crown created by enlistment are discussed, it is pointed out at p. 73 that under military law as it then existed (and subject to certain ameliorations it is in substance the same today) a soldier (and an airman is in the same position) has no right to vacate his enlistment, and that, while he is in the service of the Crown, he is no longer sui juris to contract any other obligation, nor can he exercise any rights of citizenship which may conflict with the obligation of implicit obedience under which he stands pledged to fulfil his military duty. "The general purview of the Military Code shows that a soldier gives himself up wholly to his superior officer in ... civil relations, loyalty, internal and external behaviour. He wears his clothes, cuts his hair, holds his person, and regulates his step and action at the command of officers appointed by the Sovereign." Clode proceeds to point out that the law which a member of the Forces has to obey may be divided into two branches: (1) the lex scripta, which in the present case includes the Air Force Act, and the regulations and other statutory provisions made under the authority of that Act; and (2) the lex non scripta, comprising those lawful orders which, viva voce or otherwise, the commanding officer may from time to time issue bidding a subordinate to do or refrain from doing, as a member of the forces, certain acts till then undisclosed to him. "Of course in war there is no limit to obedience (`which is the first, second, and third duty of a soldier at all times') save a physical impossibility to obey. `A subordinate officer must not judge of the danger, propriety, expediency, or consequence of the order he receives: he must obey-nothing can excuse him but a physical impossibility. A forlorn hope is devoted-many gallant men have been devoted. Victories have been obtained by ordering men upon desperate services, with almost a certainty of death or capture.' In peace these orders must be plainly within the limits of the officer's authority."

Under these circumstances the important questions that arise on the appeal are, (1) Does the relationship of master and servant exist between the Crown and an airman? (2) If it does, is loss of naval or military service sufficient to found the action? In Simmons v Heath Laundry Co, ^[F101] at p. 552 Buckley L.J. said that "broadly stated a contract of service does import that there exists in the person serving under the contract an obligation to obey the orders of the person served." The promise which Rowland made to serve the Commonwealth is contained in the oath which he took on enlistment. Referring to an enlistment Willes J. said in Dawkins v Lord Rokeby, ^[F102] at p. 811] (a case which subsequently reached the House of Lords ^[F103] ) that "in Grant v Gould, ^[F104] it was laid down, upon an application for a prohibition, that a man, by becoming a soldier, and receiving the Queen's pay, does agree and consent that he shall be subject to military discipline, and he cannot appeal to civil courts to rescue him from his own compact." In Admiralty Commissioners v S.S. Amerika, ^[F105] Lord Parker referred to "the contract" between the Admiralty and the seamen whose lives were lost through the respondent's negligence. In Halsbury's Laws of England, 2nd ed., vol. 28, p. 586, an enlistment has been described as the acceptance of an engagement in the military service of the Crown which is in the nature of a contract between the person enlisted and the Crown. But the case of father and child shows that the relationship of master and servant need not be created by contract. It is sufficient if the circumstances are such that one person is entitled in fact as a master to the services of another. The King remains the titular head of the armed forces of the Crown, and the Constitution, s. 68, therefore, provides that the command in chief of the Naval and Military Forces of the Commonwealth is vested in the Governor-General as the King's representative. The oath is an oath to serve the King in person according to its tenor. Service in the Air Force, as in the naval or military forces, involves in its most absolute form the right of a member superior in rank to give lawful orders to a member inferior in rank, and the obligation of the member inferior in rank to obey those orders.

In essence the obligation is the same as the obligation of any servant to obey the orders of his master. The difference is that a breach of the obligation does not give rise to an action for damages but to disciplinary punishment.

The control of the Crown over a soldier has been compared to the control of a master over an apprentice. In R. v The Inhabitants of Norton ^[F106] it was held that a deserter from the King's marine service could not gain a settlement under a hiring and service for a year; not being sui juris, nor competent lawfully to hire himself within the statute 3 W. & M. c. 11, s. 7. Lord Ellenborough C.J. in the course of his judgment referred to "the broad principle that one, who has contracted a relation which disables him from serving any other without the consent of his first master, is not sui juris, and cannot lawfully bind himself to serve such second master, so as to gain a settlement by serving for a year under such second contract. In reason and principle it cannot make any difference whether he be originally bound by a contract of apprenticeship, or by any other contract equally obligatory upon him, which disables him from binding himself to serve a second master. The objection is, that he cannot give the master a control over his service for the whole period which the master stipulates for and has a right to require by the contract. The King's officers might at any time have reclaimed him, and taken him out of the service in which he was engaged; he cannot therefore be said to have been lawfully hired into it. The remedy which the master might in that case have had against him is another question: and the very want of power to bind himself, as he assumed, without authority, to do, might have founded a cause of action against him by the master. But a soldier is at least as much bound to the service of the King, as an apprentice is to that of his master: and nothing is to be inferred from the measured language of the court in the case of an apprentice, in not laying down the principle broader than the matter in judgment required: but nothing was said by the court in any of the cases intimating an opinion that the rule there laid down was confined to the single case of an apprentice". ^[F107]

Lawrence J. said: "The decisions referred to have concluded the present question, if they were not made upon any ground peculiar to the case of an apprentice: but, as I understand them, they proceeded upon the ground that an apprentice was not sui juris, and could not therefore subject himself to the control of a second master for a whole year under a contract of hiring". ^[F108] The authorities referred to in the judgment of Bayley J. in R. v Inhabitants of Rotherfield Greys ^[F109] show that, whether a minor enlists voluntarily or compulsorily, he is emancipated from the control of his father and becomes subject to the control of the Crown. The position is entirely different from that of some public officer employed by the Crown to perform some independent duty which the law casts upon him. Referring to such duties Griffith C.J. in Baume v The Commonwealth ^[F110] said:"When the duty prescribed by the statute is to be performed by a designated person, and in the performance of that duty he is required to exercise independent judgment on a preliminary question of fact, the maxim respondeat superior does not apply so as to make the superior liable if the officer comes to a mistaken conclusion." See the authorities collected by McCardie J. in Fisher v Oldham Corporation, ^[F111] and by this Court in Field v Nott. ^[F112] A member of the Air Force is not employed to perform statutory duties in the exercise of his discretion. Section 4 of the Air Force Act provides, no doubt, that the members of the Air Force may be required to serve for training or any air force service either within or beyond the limits of the Commonwealth, provided that no member of the Air Force, appointed or enlisted for service within the limits of Australia only, shall be required to serve beyond those limits unless he voluntarily agrees so to serve. But this section merely defines in the most general manner the class of service a member of the Air Force can be called upon to perform and the area in which he can be compelled to serve. Regulations made under the Act provide for the terms and conditions of service of officers and men, for the constitution of courts material, for the scale of punishments for disciplinary offences, and for many other matters. But, within this broad charter, an airman is bound, as I have said, to obey the lawful orders which he receives from time to time from a superior in rank. The control which the Crown exercises over persons in its naval, military and air force services is in my opinion in every substantial sense the control of a master over its servants.

Further, I cannot see that it makes any difference that members of the forces are employed to render to the Commonwealth naval, military or air force service as opposed to civil service. It is true that in Admiralty Commissioners v S.S. Amerika ^[F113] Lord Sumner doubted whether the action applied to loss of the services of seamen in His Majesty's Navy, but he expressed no decided opinion either way, while Lord Parker ^[F114] appears to have thought the action would lie because, as I have already said, he refers to the contract of service between the Admiralty and the seamen and to that relation as one of master and servant.

It was held in Bradford Corporation v Webster ^[F115] that a municipal corporation could sue where one of its constables was injured in the execution of his duty. If the loss of the services of a constable, which are of a public nature, can found the action, it is difficult to see why the loss of naval or military services should not also be justiciable.

In Tobin v The Queen ^[F116] it was held that a petition of right would not lie where a commander of a ship of the Queen employed in the suppression of the slave trade on the coast of Africa seized a schooner belonging to the suppliant which he suspected of being engaged in slave traffic; and, it being inconvenient to take her to a port for condemnation in a Vice-Admiralty Court, caused her to be burnt. The judgment of the Court was founded, inter alia, on two grounds that are now well established, the one that at common law the Crown can do no wrong, so that a petition of right will not lie in respect of a tort committed by one of its servants; and the other, which is the same as that discussed in the cases to which I have already referred, that the commander was engaged in performing an independent duty imposed upon him by statute. But the Court also proceeded to say that the supposed analogy between the relation of the Queen to a captain in Her Majesty's Navy and the relation of a master to a servant varied in the following respects, firstly that the Queen does not appoint a captain to a ship by her own mere will, as a master chooses a servant, but through an officer of State responsible for appointing a man properly qualified; and secondly, that the will of the Queen alone does not control the conduct of the captain in his movements, but a sense of professional duty. If the first is a good ground it would apply to most public servants who are appointed by some Minister or public body representing the Crown and not by the Crown itself. Further, the plaintiff in the present case is the Commonwealth in right of the Crown and there can be no question that it is the Commonwealth which through appropriate instrumentalities controls the enlistment of volunteers in its armed forces. As to the second ground, the captain of a ship has, no doubt, a wide discretion, but so has the general manager of a business, and there seems to be no reason in principle why a captain of one of His Majesty's ships should not, within the scope of his authority, be the agent of the Crown. The reason now generally advanced for not suing the Crown in England, but for suing the captain of the ship, is that the Crown in England cannot be sued in tort. But the position is different in Australia, where the Commonwealth can be sued in tort so that in Shaw Savill and Albion Co Ltd v The Commonwealth, ^[F117] which is reported on demurrer, it was not disputed that the plaintiff company could sue the Commonwealth as an employer in tort for damages in consequence of a collision between H.M.A.S. Adelaide and the plaintiff's motor vessel Coptie, which the plaintiff alleged was caused by the negligent navigation of H.M.A.S. Adelaide. For these reasons, if there had been no decision on the point, I would have been of the opinion that the action would lie.

But the point is, to my mind, covered by authority. In Attorney-General v Valle-Jones ^[F118] MacKinnon J. (as he then was) held, in a case where two aircraftsmen of the Royal Air Force were injured by the negligence of the defendant's driver, that the Crown was entitled to maintain a claim against the defendant for the loss of the services of the men which it had thereby suffered. It is true that counsel for the defendant did not deny that an action for loss of services by the tortious act of a third party was available to the Crown as an employer as well as to a subject and that the defence was that the plaintiff had failed to prove any damage. But it appears to me to be clear from his judgment that MacKinnon J. did satisfy himself that the claim was justiciable per quod servitium amisit, and, indeed, in distinguishing Admiralty Commissioners v S.S. Amerika ^[F119] his Lordship said:"In this case the action, and the whole essence of the action, is for the loss to a master of the services of his employee". ^[F120] This decision is not, of course, binding upon this Court, but the decision of such a distinguished judge, who is now a member of the Court of Appeal, is entitled to the most serious consideration, and, if I might respectfully say so, the decision appears to me to be right.

It remains to consider what damages the Commonwealth is entitled to recover. It is contended, and his Honour so decided, that because the Commonwealth could have dispensed with Rowland's services without notice it should have done so, and thereby mitigated the damages, but the Commonwealth must be entitled to recover all the damages that naturally and reasonably flowed from the wrong complained of. Rowland had sworn to serve the Commonwealth for the duration of the war and for twelve months thereafter, so that, before it dispensed with his services, it must have been entitled to take reasonable steps to try and restore him to a state of health fit to continue his service in the Air Force. There is no evidence that the Commonwealth persevered for an unreasonable time before deciding that this could not be done. The defendants are not being asked to pay twice the same damages, because, if the Commonwealth had not kept Rowland on the pay list and provided him with medical and hospital services, he could himself have claimed for the loss of the wages which, but for his injuries, he would have earned as a civilian and for reasonable medical and hospital expenses which he would have incurred as a civilian as a result of the accident. In this respect the claim of the Commonwealth for damages is on all fours with the damages claimed and allowed in Dixon v Bell, ^[F121] Smaill v Alexander ^[F122] and Attorney-General v Valle-Jones. ^[F123] Medical expenses were allowed in Barnes v Pooley. ^[F124]

For these reasons I am of opinion that the appeal should be allowed, the judgment of the Court below set aside, and judgment entered for the plaintiff for the sum of PD456 9s. 8d., and that the defendants should be ordered to pay the plaintiff's costs of the action and of this appeal.