Attorney-General (NSW) v Perpetual Trustee Co (Ltd)

85 CLR 237

(Judgment by: Dixon J)

Attorney-General (NSW)
v. Perpetual Trustee Co (Ltd)

High Court of Australia

Dixon J
McTiernan J
Williams J
Webb J
Fullagar J
Kitto J

Subject References:
Injury to member of police force
Relationship between Crown and its employees
Professions and trades
Injury to member of police force
Relationship between Crown and its employees

Legislative References:
Police Regulation Act 1899 (NSW) No 20 - 4; 6; 9; 10; 12; 14
Police Regulation (Superannuation) Act 1906 (NSW) No 28 - The Act
Industrial Arbitration Act 1940 (NSW) No 2 - The Act
Crown Employees Appeal Board Act 1944 (NSW) No 15 - The Act

Hearing date: 25 July 1951; 26 July 1951
Judgment date: 3 March 1952; 5 March 1952


Judgment by:
Dixon J

By the order under appeal the Supreme Court of New South Wales allowed a demurrer to an information in personam by the Attorney-General and entered judgment for the defendants.

The cause of action set up by the information is for the loss of the services of a member of the police force of New South Wales owing to physical injuries sustained by him in consequence of the negligent management of a motor vehicle for which negligence the defendants were responsible. The pleading contains an allegation that the member of the police force was discharged by reason of disablement caused by such injuries and it alleges facts directed to show that up to his discharge it was incumbent upon the Crown to pay him the salary and allowances appropriate to his office and upon his discharge to pay him a pension which otherwise would not have commenced at so early a date. The claim of the Attorney-General on behalf of the Crown is to recover the salary and allowances so paid and to be reimbursed in respect both of the moneys already paid and of the moneys which will hereafter be paid to him, and the information concludes with a claim to a money sum. The basis of the information is a cause of action per quod servitium amisit and in such a cause of action, whether framed in trespass or in case, the damages have always been unliquidated. The payments made, and to be made, to the injured man may or may not afford a proper measure of damages. According to Bradford Corporation v Webster [F1] ; Attorney-General v Valle-Jones [F2] ; Attorney-General v Dublin United Tramways Co (1896) Ltd [F3] and R. v Richardson [F4] the salary and allowances do form a measure of damages and the actual and prospective payments of pension are relevant to the assessment of damages. But according to the dictum at the end of Lord Sumner's opinion in Admiralty Commissioners v S.S. Amerika [F5] none of these payments would enter into the measure of damages and according to a dictum of Lord Parker in the same case [F6] the payments on account of pension would not do so. If Lord Sumner's opinion is right it may be a question whether the information sufficiently alleges damage legally resulting from the loss of the injured policeman's services to sustain the pleading, if otherwise it discloses a cause of action. But it was not upon this point that the demurrer was argued. Moreover for the purpose of answering a general demurrer enough may perhaps be extracted from the information to supply the necessary allegation that the loss of his services involved damage, even if it were held that none of the specific expenditure alleged ought in law to be considered part of the damage. I shall therefore confine my decision to the point that was relied upon in support of the demurrer namely that the loss of the services of a member of the police force owing to his disablement caused by a wrongful act does not give the Crown a cause of action against the tort feasor.

Unless we are to reconsider what the majority of the Court decided in The Commonwealth v Quince [F7] that case in my opinion requires us to hold that the Crown is not entitled to such a cause of action. No doubt the relation of a member of the armed services to the Crown is not the same as that of a member of the police force of New South Wales to the Crown. But the reasoning upon which the judgments of the majority of the Court depend, in spite of some variation, appears to me to apply to the case of a member of the police force. It is true that Starke J. [F8] places some stress on the national duty of military service and also that his Honour confines his decision to members of the defence forces. But the distinctions between the military service of the Crown and service in a police force do not seem sufficiently relevant to the want of that correspondence with the relation of master and servant which his Honour considered to be lacking to warrant an opposite conclusion in the case of the police force.

In my opinion we ought to follow and apply the decision in The Commonwealth v Quince [F9] . This Court has adopted no very definite rule as to the circumstances in which it will reconsider an earlier decision. Certainly the rigid rule accepted in the Court of Appeal in Young v Bristol Aeroplane Co Ltd [F10] is incompatible with the practice of the Court and is inappropriate. The attention paid in this jurisdiction to developments in English case law would be enough to make the rule inappropriate, even if the history of constitutional interpretation did not show it to be so and even if, subject to the prerogative, this were not a court of final resort. In any case it may be permitted to doubt the wisdom or justice of the rule: cf. Williams v Glasbrook Brothers, Ltd [F11] following Wilds v Amalgamated Anthracite Collieries Ltd [F12] , then challenged and subsequently reversed in Dom. Proc. [F13] .

But there appears to me to be no ground for reconsidering the decision in Quince's Case [F14] unless it be a sufficient ground simply that the opposite conclusion is to be preferred. It is evident that the decision was reached only after a very full examination of the question. It cannot be said that any compelling consideration or important authority was overlooked or that the decision conflicts with well established principle or fails to go with a definite stream of authority. It is a recent and well considered decision upon what is evidently a highly disputable question. The question stands by itself. The decision does not affect some wider field of law so that its importance goes beyond the matter in hand.

In my opinion the proper course to take is simply to follow the decision and apply it. Accordingly I think that the appeal should be dismissed.

Had the matter been res integra I would for myself have adopted the view that an action does lie at the suit of the Crown for damage suffered by reason of the loss of the services of a Crown servant caused by a wrongful act and that the services of a member of the police force of New South Wales are of a description falling within the principle. I state my opinion only because separate judgments are to be delivered in which the question is examined anew.

My reason for preferring the view in favour of the Crown's right of action is simply that the grounds upon which the services to the Crown of a soldier or a policeman or an employee in its civil service are distinguished from the services for the loss of which an employer who is a subject of the Crown may complain do not appear to me to be relevant to the cause of action, either in point of historical development or in point of principle as at present understood and applied.

It is better to go first to the historical origin of the cause of action and the relation of the Crown to the forms of action involved. It is better to do so because it may at first sight seem a striking consideration that before the twentieth century no precedent has been found for the Crown's suing for the loss of services.

From early times trespass could be brought by a master for a battery of his servant whereby the master lost his services. Trespass lay at the suit of a master also for a forcible taking of his servant. This was the law before the Statute of Labourers (23 Ed. III.) as Coleridge J. showed in his judgment in Lumley v Gye [F15] . Actions on the case for enticement were based on that statute. In trespass by a master for the battery of his servant it was necessary to allege that thereby the plaintiff lost the services of his servant. In such a case "the master might recover for the services and the servant for the battery" Brooke's Abrid. Vol. II. of. 292. Trespass pl. 442 abridging Y.B. 20 H. 7 pl. 5.

In Y.B. 19 H. VI. pl. 94 (of. 45) there occurs a statement of what the law is "where my servant is beaten", viz.: "he shall have a good action of trespass and recover damages and I another action of trespass and recover damages: and yet it is only the same trespass, but the trespass is done as well to the one as to the other: and here the master recovers his damages for the loss of the services, and the servant for the damage done to his person: and so damages are recovered twice for one and the same trespass diversis respectibus. And that is adjudged anno 11 Rich. 2 II in a writ of trespass". But the master's right to recover for the services did not depend upon a retainer of the servant. "Trespass for beating his servant per quod servitium amisit lies although he was not retained but served only at will: 11 H. 4. 2. per Hull accordant". Fitzh. N.B. p. 200. "Trespass for a servant beaten, the plaintiff need not allege a retainer for where a man serves me at his pleasure and he is beaten by which I lose his services trespass lies for me, quod nota": Brooke's Abrid. Vol. II. of. 283 Trespass pl. 157 abridging Y.B. 22 H. 6 of. 43, Hilary Term pl. 25. This has remained the law, notwithstanding occasional dicta as to the need of a contract to continue serving. The judgment of Willes J. in Evans v Walton [F16] , at pp. 621, 622 makes this clear. His Lordship refers to the plea from 22 H. 6 abstracted by Brooke. In an action on the case for harbouring a servant who has broken the relation of service a retainer must be shown and this may be necessary too in an action for enticing him from the service. See Jenk's Digest of English Civil Law par. 976, and notes. But clearly a master could recover in trespass for the loss of services without making out any contractual right to them. "... it does not matter as regards the master's right to sue, how the injury is caused to the person of his servant, whether by an assault, by battery, by negligence or otherwise. The loss of service is, on the other hand, essential, but a service, de facto, is enough to support the action": Dicey on Parties in an Action (1870), p. 326. This rule formed the basis of the action for seduction. If the injury to the servant was committed with force but is the consequence of negligence and was not intended as, for instance, if he is run down in the street, the master might sue in trespass for the forcible wrong or in case for the negligence. See Williams v Holland [F17] and 2 Saunders Pleading p. 653. In each form of action the master's right was to recover for the loss of services, not for the loss of the performance of a contract of service. During the greater part of the development of English law these rules were regarded from the point of view of the remedy. They determined the scope of the remedy and the conditions in which it lay. Bearing that in mind it is necessary now to turn to the history of the Crown's right to the remedies.

The common law was that the King might resort to any remedy available to the subject. Writing of quare impedit, Fitzherbert, Natura Brevium p. 32 F. says "for the King may sue this writ and every writ in what Court he will". And elsewhere in the Natura Brevium he writes (p. 7 B) "For the King hath a Prerogative in this matter before others to sue in what Court he will; but he cannot alter or change the nature of the writ, otherwise than the Law giveth the same to him and others". And under Trespass p. 90 I "And the King shall have an action of Trespass for taking his goods and the writ is such: `Wherefore with Force and Arms our goods and chattels to the value of etc and other injuries there committed, in contempt and to the great damage of us and against our Peace"'. Instances of the King suing in trespass occur in the abridgements; see Brooke Vol. II Of. 283 Trespass pl. 172 Of. 142 Prerog. le Roy pl. 29 ("Trans. pro rege"); Comyns Dig. citing Y.B. 4 H. V. 4 b. 10 H. IV. 3 and Theloall's Digest of Briefs Original L. 1 C. 3 f. 19. I have not seen any actual reference to a writ of trespass brought by the King for the loss of services. But the King possessed many menial and other servants and it is difficult to suppose that if the services of any of these were lost through his being beaten the King might not have brought trespass per quod servitium amisit if he had chosen, just as he might bring trespassde bonis asportatis or trespass quare clausum fregit. Violence to the King's servants and violence to the King's officers would naturally be considered to call for much stronger measures than a writ of trespass. Accordingly it is not surprising if the Year Books do not contain an actual instance of trespass per quod servitium amisit brought by the King. The Liber Assissarum does, however, contain a plea of trespass which is close enough to show that no difficulty would have been felt in the King bringing a writ of trespass per quod servitium amisit. It is 27 Ass. pl. 49 and is abridged by Brooke under Joinder en Action Vol. II. of. 31 pl. 57 and under Prerogative le Roy Vol. II. of. 141 pl. 48 and is referred to in the Case of Mines [F18] , at p. 491]. The case depended on two propositions which are to be found in Co Lit. at 135b and 137b respectively thus:"If a Villeine be made a secular chaplaine, yet his lord may seise him as his Villeine and seise his goods etc" "If a villeine be a priest in the King's Chapel, the lord cannot seise him in the presence of the King for the King's presence is a privilege and protection for him". The material part of pl. 49 of 27 Ass. describes the proceeding thus: "Trespass brought by the King and by a priest, and pleaded that he was a priest (chaplain) of the King of his chapel of Westminister and was in the protection of the King, alleging the trespass to be done to him within the Palace of Westminister in the presence of the King and of his Justices and in contempt of the King and in contravention of his protection to the damage of the plaintiff". The defendant's plea, which apparently did not take the form of a justification, set up the Villenage of the chaplain and a right to the manor of which he was Villein, a plea which failed "because a man may not take his Villein in the presence of the King". Even if this chaplain sued for the King qui tam (a matter as to which see Bro. Abr. joinder en action pl. 57 and Wms. Saunders Vol. 1 p. 136 note (1)) the case none the less shows a cause of action in the King. Clearly enough a chaplain might be a servant, although he might not fall within the Statute of Labourers, a question discussed by Coleridge J. in Lumley v Gye [F19] , cf. Holdsworth H. History of English Law, vol. 2, p. 461, note 3. The case places the relation of the chaplain to the King, by whose protection he was enveloped, in antithesis to his status of Villenage. Evidently why trespass lay for the King is that what may be called his sphere of personal control had been invaded by the seizing of his chaplain who lay within it. It is because a forcible deprivation of the services of his servant amounts to a similar invasion of a master's sphere of control that he might bring trespass, not because of the personal status of the servant.

There is no reason to suppose that the action per quod servitium amisit would lie only for the loss of the services of persons of low degree. In the historical development of the actions per quod servitium amisit there has not been any limitation upon the class of services for the loss of which a private employer may sue. All that is required is that the relation of master and servant shall exist. A modern trading company whose general manager is disabled through the negligence of a stranger may sue him for the loss of the manager's services in the same way as the company might have sued had the injured man been an artisan in its employment. The remedy has followed the relation of master and servant unaffected by the changes that have taken place in the social and economic purposes for which the relation has been used. Nor has the essential character of the cause of action been influenced by the fluctuating changes over the centuries in the extent to which the terms and conditions of the employment are left to free contract. To compare the medieval conditions or conceptions in which the remedy of trespass per quod servitium amisit arose with those affecting the service of the Crown at the present time and to regard the very great difference as bearing upon the question whether the remedy belongs to the Crown for loss of the services of a soldier or policeman or a public servant appears to me to be a mistaken form of reasoning. The comparison should be between the relation to the Crown of its servants from time to time and the corresponding relation at the same respective times of a servant to a master who is a subject. I venture to think that if this form of comparison is made it will be found that at no stage in the long course of legal development the law has undergone did the relevant attributes of the relation between the servants of the Crown and the Crown so differ from those of the relation between the servants of a subject and their master as to take a loss of services by the Crown in consequence of a wrongful injury to its servant outside the scope of the remedy of trespass or of case or the modern equivalent but innominate cause of action accorded to a subject sustaining a loss of services by such a wrongful injury to his servant.

No doubt, at all times there have been offices under the Crown whose occupants serve the Crown but do not stand in the relation of a servant to his master. In former times many offices of profit existed, some of freehold, the holders of which exercised rights and performed duties of an independent character. In modern times there are many public offices existing under statute and sometimes charter the occupants of which discharge functions belonging to them by law.

But there always have been employments under the Crown where the command and direction of the Crown given mediately or immediately is the sole measure of the duty of the servant. Where the right of control exists in the Crown and extends to the manner in which the employment is carried out, that is, to the doing of the work, the test of the relation of master and servant is satisfied. Why should it be supposed that where a relation exists which is typically that of master and servant the fact that the Crown is the employer places it in a different category? The Crown in right of New South Wales and in right of the Commonwealth may be sued in tort. No one has yet denied that the Crown is liable for the tort of an officer committed within the scope of his duty, except in situations where the duty which he is attempting to fulfil is one cast upon him by law to be executed as an independent responsibility, so that the Crown is not acting through him.

It does not appear to me to matter that constitutionally the Sovereign must act through Ministers and does not give commands personally to the servants of the Crown. We are concerned here with the liability of the Crown considered as the executive government of the state and what is in question is whether the relation between executive government of the state and the member of the police force is that of master and servant. The growth of ministerial responsibility for the acts of the Crown has not changed the character of the legal relation to the Crown of the servants of the Crown. Again the question being whether employment by the Crown as the government of the country involves the relation of master and servant so that the Crown may sue for loss of services, I cannot see how the governmental character of the master or the public purpose of or interest in the service of the servant is relevant. I presume that the Railway Commissioner (as to which see Victorian Railway Commissioners v Herbert [F20] ) may maintain the action in respect of the services of for example a fireman or porter; that the Rural Bank (with the position of which we dealt in Rural Bank of New South Wales v Hayes [F21] ) may sue for the loss of the services of a clerk, and that the Grain Elevators Board (with which we dealt in the case of Grain Elevators Board (Vict.) v Dunmunkle Corporation [F22] ) may sue in respect of the loss of the services of a mechanic.

Of course there may be a question whether an officer does hold an office with independent functions or stands in the relation of an ordinary servant of the Crown. But it does not follow that because in some duties the law invests him with an independent responsibility he is not otherwise a mere servant of the Crown. For example a collector of customs discharges an independent function in passing or refusing to pass an entry and if he acts wrongfully in that respect the Crown is not vicariously responsible (Baume v The Commonwealth [F23] ). Nevertheless we have regarded him as a servant for whose libels the Crown was responsible in damages (Musgrave v The Commonwealth [F24] , at p. 548).

Quince's Case [F25] related to a member of the armed services. If there is any example of the duty of implicit obedience in all things great or small, it is that of the soldier or naval rating, and the aircraftsman is under the like discipline. The command which the Crown has over the services of an officer or man of the navy, army, or air force appears to me to place the Crown exactly in the legal situation which entitles a master to maintain an action per quod servitium amisit against a wrongdoer causing disablement to his servants. The fact that at common law neither commission nor enlistment in the armed services does or can amount to a contract with the Crown and neither officer nor man obtains any legal right against the Crown to pay deferred pay, half pay, pensions or other emolument does not appear to me to be relevant to the conditions of the cause of action. The Crown is entitled to the services of the officer or man and it is for their loss by a wrongful act that the Crown sues the tort feasor.

It is perhaps desirable to refer to the first ground given by Erle C.J. for the judgment of the Court in Tobin v The Queen [F26] , at pp. 1162-1164] about which some misunderstanding seems to me to have existed. The ground treats Captain Sholto Douglas for whose alleged tort the petitioner proceeded against the Crown by petition of right as having purported to act in the execution of an independent responsibility imposed on him by the Slave Trade Act 1824 (Imp.) (5 Geo. 4 c. 113, s. 43), so that his wrong would come within the principle that when an officer in the service of the Crown is executing an independent duty which the law places upon him the Crown is not liable for the wrongful acts he may commit in the course of carrying on his duties (Field v Nott [F27] , at p. 675). It is interesting to note that in imposing a liability upon the Crown for tort the Crown Proceedings Act 1947 (Imp.) (10 & 11 Geo. 6 c. 44) expressly negatives this ground of immunity: s. 2 (3). I do not understand Erle C.J. to treat all the duties of a naval officer in command of a King's ship as of this description; clearly enough they are not. But reasons are given (Tobin v The Queen [F28] ) for the view that the analogy between the relation of the Crown to a captain in the Royal Navy and a master to a servant fails which I think could not in principle, at all events as principle is now understood, be considered grounds for denying the vicarious responsibility of the Crown for an officer's tortious acts.

The passage states that the analogy "fails in the following respects: First, 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: and, thirdly, because the act complained of was not done by the order of the Queen, but by reason of a mistake in respect of the path of duty". Of course if "duty" in the third reason means an independent duty under the Slave Trade Act 1824 it is not open to any criticism in principle. But it is hardly necessary to say that a typical case of liability for a servant's tort is when his wrongful act is not done by the order of the master but by reason of a mistake in respect of the path of duty, provided of course that for no other reason is the act outside the course of the employment. The first reason given by Erle C.J., however, appears not only to treat the liability established by proceedings in the name of the Crown as something other than the liability of the government of the country, but also to regard the fact that the power of selection resides in a servant or agent of the master who is the ultimate party to the relation with the person employed as inconsistent with the relation being that of master and servant. The second of the three reasons appears to suppose that, if a person is employed to exercise professional skill or fulfil a function the manner of performing which is governed by standards of professional duty, such an employment cannot give rise to a relation of master and servant. If so shipowners should not be liable for the faulty navigation of their ships, hospital authorities for the negligence of radiologists or public undertakers for the failure of constructional works by reason of want of care and skill in their engineers. In the proceedings against the Commonwealth arising from the collision of H.M.A.S. Adelaide with the ship Coptic, a stage of which is reported in Shaw Saville & Albion Ltd v The Commonwealth [F29] I ultimately held the Commonwealth liable for the fault of the captain of Adelaide in setting or keeping a particular course, it being treated as obvious throughout that the Commonwealth was responsible vicariously for the fault of the captain or of any other naval officer in the navigation of the ship.

The second reason given by Erle C.J. if it were sound would be important to this case. For s. 6 of the Police Regulation Act 1899-1947 (N.S.W.) invests the Commissioner of Police with the power of appointing sergeants and constables of police. When they are so appointed, however, they must be sworn to serve the Crown and on taking and subscribing the oath they are to be deemed to have thereby entered into a written agreement with and they are to be thereby bound to serve the King as members of the police force until legally discharged: ss. 9 and 10. The police force is a disciplined body for the general government and discipline of whose members the Governor is empowered to make rules: s. 12. So far I should have thought that everything pointed to a member of the police force occupying the position of a servant of the Crown for the loss of whose services owing to an injury caused by a wrongful act the Crown might sue the wrongdoer. But the question remains whether because a constable is entrusted by law with specific powers and given specific duties which he must execute as a matter of independent responsibility (Enever v The King [F30] ; Little v The Commonwealth [F31] , at p. 114), the general relation between the Crown and a member of the police force is not that of master and servant. In my opinion this consequence does not follow. In most respects a member of the police force is subject to the direction and control which is characteristic of the relation of master and servant. It does not matter that there is a chain of command. That is necessary in some degree in all organizations military and civil, public and private. It is only when in the course of his duties as a servant of the Crown he is confronted with a situation involving the liberty or rights of the subject that the law places upon him a personal responsibility of judgment and action. I see no reason for regarding the assumptions on which the decisions in Bradford Corporation v Webster [F32] and Attorney-General v Valle-Jones [F33] were respectively based as incorrect.

There is one further decision to mention. It is that of the Supreme Court of the United States in United States v Standard Oil Co of California [F34] where a majority of the Supreme Court declined to concede to the United States a right to recover the pay and expenses of medically treating a soldier injured by the negligence of the defendant.

The decision was not based upon the common law. The United States did not succeed to the prerogatives or other rights of the Crown in relation to the subject or citizen. The causes of action to which the United States is entitled against the citizen are not the creatures of the common law. There is no relevant common law applying to the United States' claim against the citizen and State law was held inapplicable.

The question for decision was whether the Court should not, on general principles, develop a doctrine giving a cause of action to the government and this it refused to do. The refusal was based upon grounds which ultimately were brought down, in the majority judgment, to the consideration that it was a matter into which fiscal policy entered and not a pure question of what ought to be considered a tort; it was a matter for Congress. As will be seen an understanding of the situation with respect to the rights of action of the United States leaves the decision without relevance to the matter for determination here.

For the foregoing reasons, if the matter were to be considered afresh, I should prefer the view in favour of the Crown's right of recovery.

But I do not think that we should reconsider the correctness of the decision to the contrary in Quince's Case [F35] . The proper course judicially is to follow and apply that decision. To do so results in my opinion in the dismissal of the appeal.