COMMONWEALTH v QUINCE

68 CLR 227

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(Decision by: STARKE J)

Between: COMMONWEALTH
And: QUINCE

Court:

Judges: Latham CJ
Rich J

Starke JMcTiernan 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:
STARKE J

Appeal from a judgment of the Supreme Court of Queensland in an action against the respondents who were man and wife.

The Commonwealth alleged that it was the employer of a member of the Royal Australian Air Force and that the respondent Quince (who it was alleged was the servant of his wife) so negligently and unskilfully drove, managed and controlled a motor vehicle that it was driven against a motor cycle on which the member of the Air Force was riding whereby he was thrown to the roadway and injured. By reason of the premises it was alleged in substance that the Commonwealth lost the services of the airman and incurred expense for pay and allowances whilst the airman was in hospital, for hospital and medical expenses, for pension and for damage to the airman's clothing.

The trial judge allowed a small sum for damage to the clothing of the airman, which had been supplied to him and was, I gather, the property of the Commonwealth (Cf. Meux v Great Eastern Railway Co ^[F57] ), but otherwise held that the Commonwealth had established no cause of action against the defendants. The Commonwealth appealed against the latter part of this judgment.

Ordinarily one person has no claim against and cannot recover from another merely because that other person has committed a tort against a third person which indirectly injured the first-named person (Cattle v Stockton Waterworks Co; ^[F58] Admiralty Commissioners v S.S. Amerika ^[F59] ). But there is an anomalous rule in English law that where the defendant has intentionally or by neglect of some duty existing independently of contract inflicted physical harm (which has not resulted in death) upon the plaintiff's servant and the plaintiff has thereby lost wholly or partially the services of such servant an action for damages can be maintained (Martinez v Gerber; ^[F60] Hodsoll v Stallebrass; ^[F61] Berringer v Great Eastern Railway Co; ^[F62] Admiralty Commissioners v S.S. Amerika; ^[F63] Bullen and Leake, Precedents of Pleadings, 3rd ed. (1868), pp. 359, 360; Smith, Master and Servant, 8th ed. (1931), pp. 106 and following). The authorities, however, establish that it is not necessary to establish a contract of service, but that proof of some de facto relation of service is enough (Pollock on Torts, 14th ed. (1939), p. 186; Salmond on Torts, 9th ed. (1936), p. 383; Bullen & Leake, Precedents of Pleadings, 3rd ed. (1868), pp. 359, 360; Peters v Jones; ^[F64] Admiralty Commissioners v S.S. Amerika ^[F65] ).

The Commonwealth contends that this anomalous rule of English law is applicable as well to public service as to private service. Attorney-General v Valle-Jones ^[F66] was relied upon for this proposition and also to some extent Bradford Corporation v Webster, ^[F67] but there an express contract of service appears to have been made (See the report ^[F68] ), and, if not, the case of Fisher v Oldham Corporation ^[F69] suggests that it requires further consideration.

Now it is quite plain that a person in the armed forces of the Crown is not in the same category as a person in private employment. In Admiralty Commissioners v S.S. Amerika ^[F70] Lord Sumner observed that the nature and incidents of the service of the seamen of His Majesty's Navy were so different from those in private employment that "it may be questioned whether in any case an action per quod servitium amisit could have been brought at all." A person in the armed forces of the Crown is performing a national duty and does not become a Crown or governmental servant or employee in any true sense of that term: Cf. McArthur v The King. ^[F71] In time of war all male inhabitants of Australia who are British subjects (other than those exempted from service) and are between certain ages are liable to serve in the Citizen Forces. But in time of peace the armed forces of the Crown are kept up by voluntary enlistment. An oath of enlistment is taken which binds the person subscribing it to serve in the Defence Force according to its tenor, that is, to serve the King as a member of the forces until lawfully discharged, dismissed or removed, to resist the King's enemies and cause his peace to be kept and maintained and in all matters appertaining to his service faithfully to discharge his duty according to law. Pay and allowances are provided for the armed forces pursuant to the Defence Act and regulations made thereunder, but no civil contract is created between the King and members of the forces. Indeed, that is expressly provided in the case of officers, but no officer or member of the forces can recover pay alleged to be due to him by action against the Commonwealth in the civil courts. A member of the armed forces is, however, given a statutory right after he has ceased to be a member to recover from the Commonwealth by action in a Court of competent jurisdiction any moneys which are due to him under his engagement, but he has no other right in respect of pay and allowances: See Defence Act 1903-1941, ss. 12, 13, 35, 36, 37, 38, 59, 124 (d); Leaman v The King. ^[F72]

The question is whether the anomalous rule of English law above stated is applicable or should be extended to cases of physical injuries negligently inflicted upon members of the armed forces of the Crown whose service is so essentially different from that of private employees. There is no trace in the books, so far as I know, of its extension to such a case before the decision of Attorney-General v Valle-Jones. ^[F73] The question involves no principle of law and cannot be solved by any process of reasoning, for the rule itself is anomalous and artificial. The rule contemplates a relationship of service analogous to that of master and servant, for the action per quod servitium amisit appears to have begun "as a remedy for a master against one who interfered with his servant so as to deprive him of his services. ... The tort is in form ... merely a species of the more general tort of interfering with the relations of master and servant" (Winfield, Law of Tort, 2nd ed. (1943), p. 257). The relationship between the Crown and members of its armed forces does not correspond to this relationship. It arises out of a national duty to serve in the defence of Australia based upon the provisions of the Defence Act. Such a person is said to serve or to be in the service of the Crown, but that is not to my mind the kind or nature of the service contemplated by or within the rule already mentioned. And it should not be applied or extended to service of so special and peculiar a character.

In my opinion, therefore, the decision of the learned judge that the Commonwealth had established no cause of action against the defendants based upon the loss of services of an airman belonging to the defence forces was right. However, I desire to confine myself to the case of members of the defence forces, who occupy a peculiar and special position, and reserve for further consideration the case of officers or employees in the public service of the Crown whose rights depend upon statutory or other contracts.

Assuming, however, that the Commonwealth can maintain this action, the damages for loss of service might I think include the moneys paid to the airman for a period from the date of the injury until his return to duty could no longer be reasonably contemplated and also for the hospital and medical expenses. The decision in the Amerika Case ^[F74] can be distinguished.

Assuming in this case that the Crown was entitled to the services of its airman, then it appears to me a natural and reasonable result of the defendants' act that the Commonwealth should attempt to cure its servant and maintain him in its service for a reasonable period giving him, without obligation to do so (See Martinez v Gerber, ^[F75] and note a), the pay and allowances provided by the Defence Act and regulations made thereunder and which by the Act he would be entitled to recover when he ceased to be a member of the forces. But the pension claimed by the Commonwealth is not the natural and reasonable result of the defendants' act. It is not a consequence which in the ordinary course of things would flow from the defendants' act. The pension is based upon the provisions, I take it, of the Defence Act, ss. 57, 123, 124, and is a discretionary, and in the nature of a compassionate allowance without any legal right thereto whatever. The Amerika Case ^[F76] makes it clear that this claim for the payment of the pension cannot be sustained.

But for the reasons above stated the appeal, in my judgment, should be dismissed.