COMMONWEALTH v QUINCE

68 CLR 227

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(Decision by: LATHAM CJ)

Between: COMMONWEALTH
And: QUINCE

Court:

Judges:
Latham CJRich 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

Hearing date: SYDNEY 13 December 1943
Judgment date: 25 February 1944

MELBOURNE

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Decision by:
LATHAM CJ

In this case the Commonwealth of Australia, appellant, sued the respondents for damages for loss of the services of Ronald Hugh Rowland, a member of the Active Citizen Air Force. On 7th October 1941 Rowland was riding upon a motor cycle with which the defendant, W.C. Quince, who was driving a motor car, came into collision. The other defendant is the wife of W.C. Quince, and, as the owner of the motor car, she has a responsibility under s. 14 of the Queensland Traffic Acts 1905 to 1933 for damage resulting from the negligence of the driver of the car. It was found, and the finding is not disputed, that Quince was negligent, and that by reason of his negligence Rowland was seriously injured. Rowland recovered damages against the defendants in proceedings taken by him, but did not claim for his pay and allowances, or for hospital and medical expenses. The Commonwealth continued his pay and allowances from the date of the accident, 7th October 1941, up to 22nd December 1942, when he was discharged from the Air Force. It was proved that certain hospital and medical expenses for the treatment of Rowland were reasonably incurred. They were borne by the Commonwealth. There is no dispute as to the amount claimed if such amounts represent categories of damage properly claimable in the present action. The Commonwealth also paid Rowland a pension from and after the date of his discharge. Damage to Rowland's clothing was proved at PD1 19s. 7d. The Commonwealth sued the defendants for damages for the loss of the services of Rowland, claiming altogether the sum of PD589 13s. 3d., made up of pay and allowances, hospital and medical expenses, pension and damage to clothing, as stated. Judgment was given for the Commonwealth for the sum of PD1 19s. 7d., it being held by the learned trial judge that the Commonwealth had no right of action for loss of the services of an airman. The Commonwealth appeals to this Court.

Philp J., who tried the case, held that the action failed because there was no contract between the Commonwealth and the airman which established the relationship of master and servant between them; the relation between the Commonwealth and the airman was not such that the Commonwealth would be liable under the principle of respondeat superior if he committed a tort; the services of the airman were due by statute, and it would be an extension of the established form of action for loss of services to allow it to cover such a case; and, finally, the payment of wages and hospital expenses (before and after discharge) and pension were voluntary payments by the Crown, and as they were not payments which the Crown was bound to make, could not be regarded as damage resulting from the defendant's tort. I presume that the claim for damage to clothing was allowed on the basis that the clothing belonged to the Crown.

In the first place, it is necessary to determine the nature of the legal relations between the Commonwealth and an airman. I agree with the learned trial judge that the relation between an airman and the Commonwealth is not contractual in character. The relation is constituted by the airman taking an oath of enlistment. The oath taken by Rowland was in the following form:"I swear that I will well and truly serve our Sovereign Lord the King in the Air Force of the Commonwealth of Australia for the term of the duration of the war and twelve months thereafter or until sooner lawfully discharged, dismissed or removed; and that I will resist His Majesty's enemies and cause His Majesty's peace to be kept and maintained; and that I will, in all matters appertaining to my service, faithfully discharge my duty according to law. So help me, God."

Upon taking the oath Rowland became a member of the Active Citizen Air Force (Statutory Rules 1927 No. 161, reg. 36). Reg. 95 of that statutory rule provides:"The oath of enlistment shall bind the person taking it to serve in the Air Force in accordance with the tenor of the oath until he is discharged, dismissed, or removed therefrom, or until his resignation is accepted." There are corresponding provisions in the Defence Act 1903-1941, ss. 37 and 38, which are applicable to the active forces. An airman cannot terminate his service at his own will, but he may be discharged at any time for any reason as the Air Board may think fit-regs. 109, 115. Thus the general rule of law that members of the forces hold their positions at the pleasure of the Sovereign, who may dismiss them at any time, has not been altered in its application to airmen: See Dunn v The Queen; ^[F1] Mitchell v The Queen; ^[F2] Leaman v The King. ^[F3] Reg. 31 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." During his engagement, an airman is unable to sue for his pay.

Enlistment in the armed forces of the Crown may be voluntary (as in the case of the Air Force, see reg. 91) or compulsory (see Defence Act, ss. 60, 76). As Philp J. said in his judgment, it is difficult to suppose that a contract exists in the case of compulsory enlistment, and it cannot be argued that the relations between the Crown and a member of the forces in such a case are different from those which exist between the Crown and the person who has enlisted voluntarily. The oath of enlistment imposes an obligation to render service, but that obligation is created by law, and does not depend upon any contract to which the airman and the Crown are parties. The airman becomes subject to military discipline; but in enforcing discipline officers in the forces are not performing or acting under a contract; they are performing duties incidental to their position. The airman cannot sue the Commonwealth for breach of contract, except that he may sue for his pay after discharge. The remedies of damages, injunction and specific performance are not available either to the airman or to the Crown. The airman, in rendering service in the military forces, is performing a national duty, now largely defined by statute, and is not performing a contract made with the Commonwealth. The Commonwealth in relation to the airman acts in pursuance of statutory and common law powers, and is not engaged in performing any contract with him. The distinction is clearly put in the case of McArthur v The King, ^[F4] and in the case of Goldstein v New York, ^[F5] quoted in McArthur's Case. ^[F6] For these reasons I am of opinion that it was rightly held that there was no contract of service between Rowland and the Commonwealth.

The learned trial judge also referred to the fact that, notwithstanding the acceptance by the Commonwealth of liability for tort (Judiciary Act 1903-1940, s. 56), the Commonwealth is not liable under the principle of respondeat superior for the acts of officers who, though the servants of the Crown, are required in the discharge of their duties to exercise an independent discretion: See Baume v The Commonwealth; ^[F7] Field v Nott. ^[F8] Fisher v Oldham Corporation ^[F9] is a case which shows that where a corporation engages a constable who (as explained in Enever v The King ^[F10] ) has public duties to perform in which he exercises an original and not a delegated authority "the normal relation of master and servant" does not obtain between the constable and the corporation so as to affect the corporation with liability for his wrongs.

In my opinion the applicability or non-applicability of the rule respondeat superior has no relevance in relation to the liability of the defendant in an action based on a claim for damages for loss of services. The principle or doctrine of respondeat superior, which expresses the liability of a master for a tort committed by a servant acting within the scope of his employment. "can hardly be traced in any definite shape beyond the Revolution of 1688" (Pollock and Maitland, History of English Law, 2nd ed. (1923), vol. 2, p. 528). But the action for loss of services in some form can be traced to much earlier times. Taking a servant out of the service of another was an actionable trespass at common law, though originally only when the taking was vi et armis. Later, the master was allowed to sue in case (Pollock on Torts, 13th ed. (1929), p. 234; Wright v Cedzich, ^[F11] authorities cited by Isaacs J. ^[F12] and by Rich J. ^[F13] ). After the Statute of Labourers, 23 Ed. III. (1349), the employment or harbouring of a servant who had quit the service of a master whom he was obliged to serve became actionable (Street, Foundations of Legal Liability, (1906), vol. 1, pp. 265, 266). The action for seduction of a daughter, which is historically an action for loss of services, lay at common law: See Smith, Master and Servant, 8th ed. (1931), p. 95, with a reference to a case in 39 Ed. III. The master's action for battery, whereby he lost the services of the servant, was well recognized some centuries before 1688 (Pollock on Torts, 13th ed. (1929), p. 233; Street, Foundations of Legal Liability, (1906), vol. 1, p. 266, with a reference to a case in 21 Henry VI.). These authorities show that it cannot be said that the action for loss of services is limited to cases where the principle of respondeat superior is applicable.

But whatever may be the position as to the relevance of the doctrine of respondeat superior, I agree that the relations between the Commonwealth and an airman cannot be treated as a branch of the law of master and servant depending upon the existence of a contract, though the duty of the airman is to serve and to obey orders. The source of his obligation is not to be found in a contract between the Commonwealth and the airman. Does it follow that the claim of the Commonwealth in this action must fail?

In the first place, it should be observed that the action of trespass per quod servitium amisit originated at a time when the right to the services of another person generally depended upon status, and not upon a contract of employment: See Admiralty Commissioners v S.S. Amerika, ^[F14] where Lord Parker refers to the time when the basis of society was still status, rather than contract, and the King's courts had not invented any procedure for the enforcement of simple contract obligations. Nevertheless there were writs available whereby a master could obtain a remedy in respect of wrongs done to his servant. Lord Parker says: "The inference is that all these writs arose out of status at a time when the servant or apprentice, as well as the wife and child, was a member of the family, and the relation between him and the head of the family had not yet come to be looked upon as resting upon contract". ^[F15] So also Sir William Holdsworth, referring to the remedies of the master in trespass per quod servitium amisit, says: "They rested at bottom on the idea that the master had a quasi-proprietary interest in his servant's services; and that idea is connected with ideas as to the status of a servant, which originated in the rules of law applicable to villein status" (Holdsworth, History of English Law, 2nd ed. (1937), vol. VIII., p. 429)-See also Diamond, The Law of Master and Servant, (1938), p. 238, to the same effect. The relation between the lord of a manor and his villeins, whether annexed to the manor or land or at large, did not depend upon any contract made between the lord and the villeins. The rights depended upon rules of law. Accordingly, the remedy of the master for loss of services of a villein was not in its origin associated with any contract of service. It may be observed that the word "status" is used in describing the position of a soldier-as in In re Grimley, ^[F16] cited by Philp J.

Next, the application of this form of action to the case of the seduction of a daughter supports the proposition that the right of action was not dependent upon the existence of any contract of service. The action for seduction can be brought by a father whose daughter has been seduced, but only if the father has lost the services of his daughter by reason of the seduction, though a very slight amount of service has been held to be sufficient to support the action, and service is presumed in the case of an infant daughter old enough to give service. Service de facto is sufficient without any contract of service. In the case of a father and his infant daughter, there is no contract of service in existence, but the remedy is nevertheless available. There is a loss of service in fact "in which" (the father) "is supposed to have a legal right or interest," as it was put in Grinnell v Wells ^[F17] by Tindal C.J.: See also Evans v Walion ^[F18] where it was held that an action will lie for enticing away a daughter though there be no allegation that there was a binding contract of service between the father and the daughter. See also Pollock on Torts, 14th ed. (1939), at p. 183; Salmond on Torts, 9th ed. (1936), p. 383. All authorities appear to agree that de facto service without any contract of service is a sufficient foundation for the father's right in cases of seduction.

The right of action for trespass per quod servitium amisit and the similar action in case therefore did not depend upon the existence of a contract of service, but upon a right of one person to the services of another. But the mere fact that one person is rendering service to another in the sense of doing something which is for the benefit of another, whether under a contract or otherwise, has not been regarded as a sufficient foundation for the action. A solicitor gives service to his client; a doctor to his patient; an independent contractor does work for the person with whom he has made the contract; but it has never been suggested that an action for loss of services would lie if any of these persons were injured by the tort of a third person. The action has been confined to cases where it has been possible to hold that there is a right to services, whether arising by contract or from status, or implied from parenthood, when in those cases the plaintiff had the right to control the services of the person injured, whether that person was villein, servant or daughter, i.e., to give orders and to have them obeyed. The authorities in my opinion show that the action lies when one person has a right to the services of another and can command that person in the doing of such services. The Commonwealth is entitled to the services of members of the forces. They swear that they will serve the King. Military service is service of the highest order of obligation. The obligation is enforced by discipline under the authority of military law. It is higher in degree than any contractual obligation or any obligation founded upon family relationship. It is, I think, true that a member of the forces is not a servant of the Crown in such a sense that the ordinary law of master and servant determines the relations of the parties. He may not be an officer or servant of the Crown within the meaning of a statute which imposes liability upon the Crown for the acts of its officers and servants-as was held in McArthur v The King. ^[F19] But the very essence of his position is that he is bound to render service, to obey orders, and, in my opinion, the history of this form of action shows that in such cases the action lies, even though the obligation is not based on contract.

There is, as far as I have been able to discover, no authority which is directly in point. In Admiralty Commissioners v S.S. Amerika ^[F20] Lord Sumner expressed a doubt whether the action per quod servitium amisit could have been brought in respect of loss of service of seamen of His Majesty's Navy, but there is no decision to that effect. So far as authority does exist, it rather favours the claim of the Commonwealth. In Attorney-General v Valle-Jones, ^[F21] MacKinnon J. (now MacKinnon L.J.), upon a claim which cannot be distinguished from the present claim, awarded damages to the Crown for the loss of services of an airman. In that case, however, the right of action of the Crown was not disputed (see the report ^[F22] ), but at least it may be said that the learned judge was not of opinion that the action was not maintainable. In Bradford Corporation v Webster, ^[F23] a corporation recovered damages for the loss of services of a constable, though, as pointed out by McCardie J. in Fisher v Oldham Corporation, ^[F24] the constable was not a servant of the corporation in the sense in which the word servant is used in the phrase "master and servant." McCardie J. referred to the Bradford Corporation Case ^[F25] as one which could perhaps be supported as resting upon "a special and extremely artificial form of action," namely the action per quod servitium amisit. Thus such authority as there is supports the right of the Commonwealth to bring this action and, for the reasons which I have stated, I am of opinion that the action lies.

By reason of the defendants' tort the Commonwealth lost the services of Rowland. The damages in this class of action have been always more or less at large, more particularly in seduction cases, to which special considerations apply. In all cases, medical and hospital expenses have been allowed to a reasonable amount. If the action lies there is no question that the reasonable medical and hospital expenses incurred by the Commonwealth up to the time of discharge of the airman are recoverable. The medical expenses incurred after the discharge of the airman appear to be voluntary payments only and not recoverable.

The pay of the airman was continued by the Commonwealth up to the date of discharge. The question which arises in relation to pay is whether it was reasonable to pay these moneys, for which no service was received, and whether they were so paid, that is, paid without service being rendered, in consequence of the defendants' tort. In my opinion they were so paid by the Commonwealth. A master is not bound to dismiss a servant as soon as he is injured and to leave him to the mercies of charity. He is entitled to behave reasonably, and the payment of his wages for a period while an attempt is being made to restore him to health is a proper head of damage. As to both medical and hospital expenses and pay, see Bradford Corporation v Webster ^[F26] and Attorney-General v Valle-Jones. ^[F27]

The claim for pension, particularly in this case, stands on a different footing. The documents produced to the Court show, I think, that the authorities "stretched a point" in granting a pension at all, and I do not think that the defendant should be made liable under this head.

The amounts which in my opinion are recoverable are:Pay to time of discharge PD168 8s.; Medical and hospital expenses to time of discharge PD286 2s. 1d.; Damage to clothing PD1 19s. 7d.; Total PD456 9s. 8d.

In my opinion, the judgment of the learned judge should be set aside and in lieu thereof there should be judgment for the plaintiff for PD456 9s. 8d., together with the costs of the action and of the appeal.