A-G (NSW) v Perpetual Trustee Co Ltd [1952] HCA 2 | Case summary | Zoe

CTHHCA

A-G (NSW) v Perpetual Trustee Co Ltd

[1952] HCA 2

High Court of Australia|1952-03-05|Before: Kitto JJ, Dixon J, Starke J

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Source facts

Court

High Court of Australia

Decision date

1952-03-05

Before

Kitto JJ, Dixon J, Starke J

Source

Original judgment source is linked above.

Judgment (112 paragraphs)

[1]

For the reasons which I have given this action for the injury done to the policeman, per quod servitium amisit, is not authorized by law. The Full Court's judgment allowing the demurrer is right. Accordingly, the appeal should be dismissed.

[2]

This is an appeal from an order of the Full Supreme Court of New South Wales that judgment on demurrer be entered for the defendants in the action. The action is one brought by the Attorney-General of New South Wales on behalf of His Majesty and the information alleges that a member of the police force of that State was injured by the negligent driving of a motor vehicle by one of the defendants, for whose negligence the other defendants were responsible, which disabled him from performing his duties as a member of the police force and later caused his discharge. The action is therefore one per quod servitium amisit and the ground on which the demurrer succeeded was that this action does not lie at the suit of the Crown for the loss of the services of a member of the police force. The damages claimed include reimbursement of the salary and allowances paid to the policeman whilst he remained in the force and moneys paid and payable in the future to him in respect of a pension to which he became entitled on his discharge under the provisions of the Police Regulation (Superannuation) Act 1906-1944 N.S.W. but we are not concerned on this appeal with the quantum of damages but only with the question whether the action lies. Their Honours in the Supreme Court were of opinion that the action was indistinguishable in its facts from the decision of this Court in The Commonwealth v. Quince [1] in which it was held by a majority that the Commonwealth could not sue per quod servitium amisit for damages for the loss of the services of a member of the Royal Australian Air Force who was injured by the negligent driving of a motor car by the defendant. In these circumstances the Supreme Court, as it was bound by that decision, necessarily had to allow the demurrer.

[3]

The service of a member of the police force of New South Wales is regulated mainly by the Police Regulation Act 1899-1947 N.S.W. which provides for the appointment, discipline and duties of the force. The Industrial Arbitration (Police) Amendment Act 1946 N.S.W. included in the definition of employees of the Crown employees employed under the Police Regulation Act 1899 or any statute passed in substitution for or in amendment of the same. The Crown Employees Appeal Board Act 1944 N.S.W. included amongst officers who have a right of appeal to the Crown Employees Appeal Board any person who is a member of the police force within the meaning of the Police Regulation Act 1899-1947 and amended the Police Regulation (Appeals) Act 1923 as amended by subsequent Acts. But the two last-mentioned Acts, the first of which gives members of the police force similar rights to those of other Crown employees to apply to the Industrial Commission of New South Wales to have their wages fixed, and the second of which gives members of the police force who are dissatisfied with any decision of the commissioner on such questions as granting or refusing promotion, or the imposition of certain punishments such as fines, suspensions, reductions in rank or pay, or dismissal, discharge or transfer, the right to appeal to the Crown Employees Appeal Board, do not appear to me to throw any light on the question at issue. The important Act is the Police Regulation Act. Section 4 of that Act provides for the appointment by the Governor of a commissioner of police who shall, subject to the direction of the Minister, be charged with the superintendence of the police force of New South Wales. The Act also provides for the appointment by the Governor of a deputy commissioner and for such number of superintendents and inspectors of police as may be necessary. It also provides for the appointment of sergeants and constables of police by the commissioner. Section 6 (2) provides that such constables shall have all such powers, privileges and advantages and be liable to all such duties and responsibility as any constable duly appointed now has or hereafter may have either by the common law or by virtue of any Statute or Act of Council now or hereafter in force in New South Wales. Section 9 provides that no person appointed to be a member of the police force shall be capable of holding such office or of acting in any way therein until he has taken and subscribed the following oath: - I, A.B., do swear that I will well and truly serve our Sovereign Lady the Queen in the office of Commissioner, superintendent, inspector, sergeant, or constable of police (as the case may be), without favour or affection, malice or ill-will, for the period of from this date, and until I am legally discharged, that I will see and cause Her Majesty's peace to be kept and preserved, and that I will prevent to the best of my power all offences against the same, and that while I continue to hold the said office I will to the best of my skill and knowledge discharge all the duties thereof faithfully according to law. So help me God. Section 10 provides that every person taking and subscribing such oath shall be deemed to have thereby entered into a written contract with and shall be thereby bound to serve Her Majesty as a member of the police force and in the capacity in which he has taken such oath, at the current rate of pay for such member, and from the day on which such oath has been taken and subscribed until legally discharged, provided that - (a) no such agreement shall be set aside, cancelled, or annulled for want of reciprocity; (b) such agreement may be cancelled at any time by the lawful discharge, dismissal, or other removal from office of any such person, or by the resignation of any such person accepted by the commissioner or other person acting in his stead. Section 12 provides that the Governor may make rules for the general government and discipline of members of the police force and to give effect to this Act or any amendment thereof. Rules under this section were published in the Government Gazette on 21st August 1925 and have been subsequently amended. Section III, r. 2, provides that "The first duty of a member of the Force, no matter what his rank, is to show proper respect for and to give unquestioning obedience to the commands of his official superiors, and the second is to give considerate treatment to subordinates. The latter is as important as the former". Rule 27 provides that "Every member of the Force will be presumed to know his duty in every case, and, in the absence of orders or instructions, will be held responsible for the due performance thereof; and in case of failure or neglect will be liable to punishment or dismissal". Section IV relates to the conditions of service. Its rules provide that the police are admitted to the service in accordance with the provisions of the Police Regulation Acts, and upon the following conditions, inter alia, that they are to devote their whole time and energy to the police service; that they are to serve and reside wherever they are appointed, and perform fatigue or any other duty as directed; that they are to wear uniform at all times when on duty, unless otherwise authorized; that they are strictly to comply with the rules and instructions, and promptly obey all lawful orders from those in authority over them; that they will be liable to punishment or dismissal for disobedience, neglect or omission of duty, incompetency, intemperance, disrespect to any person in authority, insolent or indecorous behaviour, or any words or actions subversive of discipline or calculated to impair the efficiency of, or bring discredit upon the police service, or any misconduct punishable by law or contrary to rules and instructions; and will also be liable to such legal penalty as may be incurred; that they are not to resign or withdraw themselves from their duties without the permission of the Inspector-General, unless they have given three months' notice in writing. If they resign or withdraw without leave or notice they will forfeit all pay due, and may be charged before a Court under the Police Regulation Act 1899. During the period an applicant is at the depot, before being sworn in, he may leave at any time by giving notice to the officer-in-charge.

[4]

These short extracts from the Police Regulation Act and rules are sufficient, I think, to illustrate the general nature of the conditions of service in the police force of New South Wales. A policeman has many duties cast upon him by the common law and by statute in the exercise of which he acts at his own discretion virtute officii as a principal and the Crown is not responsible for his conduct (Enever v. The King [1] ; Field v. Nott [2] ). But they are servants of the Crown at least to the same extent that pilots were held to be such servants in Fowles v. Eastern and Australian Steamship Co. Ltd. [3] . It is the Crown that selects the members of the police force and which is responsible for providing a proper supply, a proper supervision, and a proper remuneration of men who play such an important part in the maintenance of internal law and order. There is an obligation on the Crown to maintain such law and order similar to the obligation on the Crown to provide for the defence of the realm against external foes. The Crown provides the necessary forces for each purpose, the police force for the former purpose and the armed forces for the latter purpose. The members of all these forces perform public services, and these services are provided by the Crown. The men who perform these services are employed and paid by the Crown, are subject to the orders of their superior officers, and may be dismissed by the Crown. In Fisher v. Oldham Corporation [4] McCardie J. described a police officer as a servant of the State. The principle of respondeat superior may apply in more instances to make the Crown vicariously liable for torts committed by members of the armed forces than it does to make the Crown so liable for torts committed by members of the police force. But the Crown suffers a loss of the same essential character if it is deprived of the services of a member of the police force as it does if it is deprived of the services of a member of the armed forces. Each form of service combines a high degree of obedience to the orders of superior officers with a considerable latitude of discretion in the execution of such orders. Each form of service is regulated to a large degree by statutes and regulations or rules made under statutes but also includes by implication many of the incidents which the law implies in an ordinary contract of service (Reading v. Attorney-General [5] ).

[8]

Its maintenance is injurious to the public interest because it is highly anomalous that the Crown in right of the Commonwealth (in the present case the Crown in right of the State of New South Wales) should be vicariously liable for wrongs done to members of the public by its servants in all cases where the doctrine of respondeat superior applies, whilst it is denied any remedy for the loss of their services caused by the wrongful acts or omissions of members of the public. The decision is manifestly wrong because it proceeds on the view that the relationship of the Crown and a member of the armed forces is not analogous to that of a master and his servant under a contract of service. This view is inconsistent with that expressed by the House of Lords in Owners of S.S. Raphael v. Brandy [3] , and there is no logic or common sense in confining the action per quod servitium amisit to the loss of the services of servants of private employers and denying the action to the Crown. The action is essentially an action by a master against a wrongdoer where as a result of a wrongful act or omission affecting his servant the master is deprived of the services of his servant. The simplest way of establishing the relationship of master and servant is to prove a contract of service but it has long been held that the father of a family in respect of such services as his daughter renders him from her sense of duty and filial gratitude stands in the same position as an ordinary master. The action has never been confined to any particular service. It could always be brought whether the servant was a domestic servant, an employee in a business, or any other kind of servant. See, for instance, the contracts of services in the cases cited in the judgments in Evans v. Walton [4] ; Berringer v. Great Eastern Railway Co. [5] ; Mankin v. Scala Theodrome Co. Ltd [6] . In Robert Marys's Case [7] it is said "And therefore, if my servant is beat, the master shall not have an action for this battery, unless the battery is so great that by reason thereof he loses the service of his servant, but the servant himself for every small battery shall have an action; and the reason of the difference is, that the master has not any damage by the personal beating of his servant, but by reason of a per quod, viz. per quod servitium, &c. amisit; so that the original act is not the cause of his action, but the consequent upon it, viz. the loss of his service is the cause of his action; for be the battery greater or less, if the master doth not lose the service of his servant, he shall not have an action".

[10]

The majority of the Justices in Quince's Case [1] seem to have thought that the action was confined to the loss of services which could only exist under a private contract of employment. Rich J. said: "The relations of the Crown and members of the fighting forces are determined and governed by statutes and regulations. They have no real analogy to those of private persons who stand to one another in the relation of master and servant, de jure or de facto the services rendered to the Crown by members of those forces differ in kind from those rendered by a servant to a private master under a contract of service, and there is no principle upon which the Crown can recover in an action per quod servitium amisit in respect of the loss of such services" [2] . Starke J., after referring to a relationship of service analogous to that of master and servant said, "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" [3] . McTiernan J. said, "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" [1] .

[12]

As I have said there is no case in which it has been held that the action is confined to the loss of any particular kind of service. All kinds of services are rendered to masters under contracts of service. It is clear that the action does not require that there should be a contract of service. De facto service is enough. It is sufficient if the service is being rendered gratuitously. It is unfortunate that in Quince's Case [2] the Court was not referred to the case of the Owners of S.S. Raphael v. Brandy [3] . That case has been recently cited in a number of cases of which I need only mention M'Mahon v. David Lawson Ltd. [4] . The Workmen's Compensation Act 1906 Imp. (6 Edw. 7 c. 58), First Schedule, par. 2 (b) provided that where a workman who had been injured had entered into concurrent contracts of service with two or more employers under which he worked at one time for one such employer and at another time for another such employer, his average weekly earnings should be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the accident. In Owners of S.S. Raphael v. Brandy [3] the question was whether a stoker in the mercantile service, who was also a stoker in the Royal Naval Reserve, and as such entitled to a retainer of £6 a year, and met with an accident while employed on a merchant ship, was serving under concurrent contracts of service within the meaning of this provision. In the Court of Appeal [5] , Cozens-Hardy M.R., referring to the stoker's service in the Royal Naval Reserve, said "It is no doubt true that at the moment of the accident he was not in actual service with the Fleet. Nevertheless, I think there was a subsisting contract of service under which the Admiralty had a right to require him to leave the Raphael " [6] . Fletcher Moulton L.J. said, "I fail entirely to understand the grounds on which it is suggested that these are not earnings. They are payments under a definite contract of service which includes not only actual service during a certain period of the year (when of course the payment is at a different rate), but also the liability to be called upon to perform actual service at any other period. This contract of service lasts throughout the year, and to my mind the payment is typically in respect of a concurrent contract of service" [7] . In the House of Lords Lord Loreburn L.C. said, "A point was made before your Lordships which does not appear to have been made in the Court below, that there was no contract with the Crown at all here. The authorities cited go no further than to say that when there is an engagement between the Crown and a military or naval officer the Crown is always entitled to determine it at pleasure, and that no obligation contrary to that would be recognized or valid in law" [1] . Lord Shaw of Dunfermline said, "My Lords, beyond that it appears to me that there was in this case service under the Crown. It appears to me further that the Crown was the employer, and I agree that this was a typical case of concurrent contracts of service" [2] . There is also the statement of Lord Parker of Waddington to the same effect in Admiralty Commissioners v. S.S. Amerika [3] , "These pensions and allowances are granted under statutory authority, but it does not appear that their grant formed any part of the contract between the Admiralty and the seamen whose lives have been lost through the respondents' negligence".

[14]

Can there be any doubt that when a person enters the service of the Crown, at any rate voluntarily, he enters into an engagement to serve the Crown on the terms and conditions express or implied, whether statutory or otherwise, relating to his engagement. In the absence of any statute to the contrary it is an engagement which, as Lord Loreburn pointed out in Raphael's Case [4] the Crown is entitled to determine at will. It is also an engagement under which, again in the absence of any statute to the contrary, the servant is dependent upon the bounty of the Crown for the payment of his remuneration which does not create a debt so that he is unable to sue the Crown if the Crown refuses to pay him (The Commonwealth v. Welsh [5] ). Nevertheless the engagement creates a legal right in the Crown to have the services performed. It is a voluntary engagement and therefore in the nature of a contract with the Crown to perform the services. If the Crown can require the performance of these services to the same extent as a master can require the performance of the services of a servant under a contract of service, then the Crown must suffer damage from the deprivation of these services analogous to the damage which a private employer suffers if he is deprived of the services of an employee. In Grinnel v. Wells [6] , Tindal C.J. pointed out in a passage that is frequently cited that "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" (provided the beating is so severe that the master is deprived of those services). The legal right is to have the services performed and the Crown has that right in the case of all those persons who agree to serve the Crown. In the case of land the highest form of ownership known to the common law is an estate in fee simple. That estate orginally arose out of a grant of land by the Crown to its noblemen in return for military service. So there is nothing novel in the conception of the Crown having a legal right or interest in the services of the members of its armed forces.

[17]

The question at issue on this appeal recently arose in Canada in R. v. Richardson and Adams [2] . The Supreme Court of Canada was considering the effect of s. 50A of the Canadian Exchequer Court Act 1927, introduced into that Act by 7 Geo. VI. c. 25, s. 1, which provides that "For the purpose of determining liability in any action or other proceeding by or against His Majesty, a person who was at any time since the twenty-fourth day of June, one thousand nine hundred and thirty-eight, a member of the naval, military or air forces of His Majesty in right of Canada shall be deemed to have been at such time a servant of the Crown". A Canadian serviceman was injured by the negligence of the driver of a motor vehicle and it was held, reversing the trial judge, that the Crown could sue both the driver and the owner of the vehicle per quod servitium amisit. The trial judge found that the accident was solely caused by the negligence of the driver of the vehicle but dismissed the information on the ground that the services of members of the naval, military and air forces of His Majesty in right of Canada are so different from those in private employment that an action per quod servitium amisit could not succeed. The Supreme Court held that the action lay. They relied on the previous decision of that Court in Attorney-General of Canada v. Jackson [1] , that s. 50A places the Crown in a recognized common law relation and that its rights are those arising from that relation under the rules of that law. The presiding judge, Kerwin J., with whose judgment Taschereau J. agreed, said that, in the absence of s. 50A, he would have arrived at the same conclusion as Latham C.J. and myself in Quince's Case [2] . Section 50A was passed to overrule the previous decision of the Supreme Court of Canada in McArthur v. The King [3] cited in Quince's Case, where it was held that a member of the armed forces was not an officer or servant of the Crown within the meaning of s. 19 (1) (c) of the Canadian Exchequer Court Act. The decision in McArthur's Case would probably have been different if the Raphael Case [4] had been cited to the Court. The importance of Richardson's Case [5] is that it is a decision that where the relationship of master and servant exists between the Crown and the victim, the Crown can sue per quod servitium amisit although the services of the victim are of a public and not of a private nature.

[29]

Counsel for the plaintiff sought, in the first place, to distinguish the claim made in this case by the Crown in right of New South Wales from the claim made by the Crown in right of the Commonwealth in Quince's Case. In that case the Commonwealth alleged that one Rowland, a member of the Royal Australian Air Force, had been injured by the negligent driving of a motor car by the defendant. Rowland received treatment of his injuries at military hospitals from the date of the accident until the date of his discharge from the Air Force, a period of some fourteen months. Until his discharge he continued to receive pay and allowances from the Commonwealth. After his discharge he was granted a pension under reg. 6 of the National Security (War Pensions and Repatriation Benefits) Regulations, but it was very doubtful whether he was legally entitled to such a pension. The action came on for trial before Philp J. in Brisbane. The learned Judge found that Rowland's injuries were caused by negligent driving on the part of the defendant. He also found that Rowland received before his discharge pay and allowances to the amount of £168 and hospital and medical treatment to the value of £286, and after his discharge further medical treatment at a cost to the Commonwealth of £73 and a pension of which the amount paid to date of action brought was £60. The Commonwealth claimed to recover these sums from Quince and also a sum of about £2 in respect of clothing destroyed in the accident. Rowland had previously brought an action and recovered damages himself, but his damages did not include any of the items in question in the Commonwealth's action. Philp J. gave judgment for the plaintiff for the £2 owed in respect of clothing - presumably, as Latham C.J. said [1] on the ground that the clothing was the property of the Commonwealth. Otherwise he dismissed the action, holding that the Commonwealth had no right of action in respect of loss of service of a member of its air force. His Honour thought that the relationship was not one of contract, but he said [2] : "Whether there be a contract or not, it seems to me that the incidents of the relationship are very different from those of the relationship of master and servant".

[33]

As a general rule, a person is liable for damages caused to another by his carelessness only when it amounts to negligence, that is, when he owed a duty to the other to be careful, and the damage was the proximate result of failure to perform the duty; and the mere fact that the injury prevents a third party from getting a benefit from the person injured which, but for the injury, he would have obtained does not invest the third party with a right of action against the wrongdoer (La Société Anonyme de Remorquage à Hélice v. Bennetts, [1] ; Admiralty Commissioners v. S.S. Amerika [2] ; Wright v. Cedzich [3] . But to the latter rule there is an exception. If a person is in fact rendering service to another of a kind that is performed under a contract of service, and sustains injury, through the negligence of a third party, which prevents him from continuing to render the service, the person whom he was serving may recover from the wrongdoer compensation for the damage which he has sustained through the loss of service The exception is of great antiquity in English law. It became established at a time when the head of a household was regarded as having a quasi-proprietary interest in the members of his family, his apprentices, his hired servants, and their services (Admiralty Commissioners v. S.S. Amerika [4] ; Holdsworth, History of English Law, 2nd ed. (1937), vol. viii, p. 429; Wright v. Cedzich [5] ), but, except in a recent case which it will be necessary to consider later, it appears never to have been applied except to persons serving under a contract of service or in fact rendering services such as would be given under such a contract . His Honour then proceeded to consider the nature of the relationship between the Crown and those who render it military service. The relationship was not, he said, contractual, but it was not essential that a contractual relationship should exist. It was, however, essential that there should be at least "a de facto relationship of master and servant" [6] . His Honour was of opinion that no such relationship existed between the Crown and a member of the air force. He said: - "The relations of the Crown and members of the fighting forces are determined and governed by statutes and regulations. They have no real analogy to those of private persons who stand to one another in the relation of master and servant, de jure or de facto: cf. Davies v. Littlejohn [7] . In my opinion, the services rendered to the Crown by members of those forces differ in kind from those rendered by a servant to a private master under a contract of service, and there is no principle upon which the Crown can recover in an action per quod servitium amisit in respect of the loss of such services" [8] . See also the judgments of Starke J. [9] and of McTiernan J. [10] . 1. (1944) 68 C.L.R. 227. 2. (1944) 68 C.L.R. at pp. 240, 241. 3. (1911) 1 K.B. 243. 4. (1917) A.C., at pp. 43, 45. 5. (1930) 43 C.L.R. 493. 6. (1917) A.C., at pp. 44, 45. 7. (1930) 43 C.L.R., at p. 521. 8. (1944) 68 C.L.R., at p. 242. 9. (1923) 34 C.L.R. 174, at pp. 183, 184. 10. (1944) 68 C.L.R., at p. 243. 11. (1944) 68 C.L.R., at pp. 246, 247. 12. (1944) 68 C.L.R., at pp. 250, 251.

[34]

Constables of police have, of course, rights, powers and duties at common law, but in New South Wales the relation between members of the police force and the Crown depends primarily on the Police Regulation Act 1899-1947 N.S.W.. The history of the earlier legislation is traced in the argument of Sir Julian Salomons in Bell v. Nigro [1] . Section 4 of the Act provides that the Governor may from time to time appoint a commissioner of police, who shall, subject to the direction of the Minister, be charged with the superintendence of the police force of New South Wales. He is to receive such remuneration as the Governor may determine, but such remuneration is not to be reduced during his term of office. He may be suspended from office by the Governor for misbehaviour or incompetence, but he may not be removed except upon a resolution of each House of Parliament, and, unless such resolutions are passed within a prescribed time, a suspension will cease to have effect. He is to retire at the age of sixty-five years, and his office is deemed to be vacated in certain events such as bankruptcy and insanity. By s. 4A the Governor is authorized to appoint a deputy commissioner of police, and by s. 5 such number of superintendents and inspectors of police as may be found necessary. By s. 6 the commissioner may, subject to disallowance by the Governor, appoint so many sergeants and constables of police as he deems necessary for the preservation of the peace throughout New South Wales. Such constables are to have all such powers, privileges and advantages and be liable to all such duties and responsibilities as any constable had at the passing of the Act or thereafter may have either by the common law or by virtue of any statute in force in New South Wales. Section 9 provides that every member of the police force shall take and subscribe an oath that he will well and truly serve His Majesty in his office without fear or affection, malice or ill-will, that he will cause His Majesty's peace to be kept and preserved, that he will prevent to the best of his power all offences against the same, and that he will to the best of his skill and knowledge discharge all the duties of his office. Section 10 provides that every person taking and subscribing this oath shall be deemed to have thereby entered into a written agreement with, and shall be thereby bound to serve His Majesty as a member of the police force at the current rate of pay for such member until legally discharged. There are provisions (a) that no such agreement shall be set aside cancelled or annulled for want of reciprocity and (b) that such agreement may be cancelled at any time by lawful discharge dismissal or other removal from office or by resignation accepted by the commissioner. There are a number of other provisions relating to duties, discipline, offences and so on. In Fletcher v. Nott [1] it was held that a police constable is liable to dismissal at the pleasure of the Crown.

[38]

In the first place much reliance was placed on s. 10 of the Police Regulation Act, the effect of which I have set out above. It says that the person taking the oath shall be deemed to have thereby entered into a written agreement with His Majesty, and shall be thereby bound to serve His Majesty as a member of the police force. I am prepared to assume that the second "thereby" means "by the agreement which is to be deemed to have been made", though I do not think that the argument really loses anything in force if the word is taken to mean "by the taking of the oath". The argument was that s. 10 introduced into this case an element which was absent from Quince's Case. There was in law a contract between a member of the police force and the Crown - a contract not perhaps "reciprocal", as the first proviso suggests, but a contract whereby the member bound himself to serve the Crown and became a servant of the Crown. I do not think that this argument affords a sound basis for distinguishing Quince's Case. All of the justices who formed the majority in that case clearly recognized that a soldier or a member of the air force was, in a sense, "bound" to "serve" the Crown. But they were of opinion that that was a different thing altogether from being the servant of a master in the sense which was relevant for the decision of the question whether an action by the master would lie for a wrong per quod servitium amisit. Rich J. said: - "In my opinion, the services rendered to the Crown by members of those forces differ in kind from those rendered by a servant to a private master under a contract of service, and there is no principle upon which the Crown can recover in an action per quod servitium amisit in respect of the loss of such services" [1] . Starke J. said: - "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" [2] . McTiernan J. said: - "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 engages 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" [3] . It cannot be maintained that these passages do not apply to and govern the present case.

[54]

I begin by thinking that every member of the navy or the army or the air force or the police force is a servant of the Crown in the sense which is required for the application of the rule of respondeat superior. If the Crown is liable in tort, it will be liable for a tort committed by any such person in the course of his employment. The subordinate is not the servant of his superior in the service: subordinate and superior are alike servants of the Crown (Bainbridge v. Post Master-General [1] ). It may be said that the famous case of Tobin v. The Queen [2] is authority for the proposition that a commander or other officer of one of His Majesty's ships of war is not a servant of the Crown, and indeed this is explicitly stated by Erle C.J. [3] . But it was a sufficient and overriding ground for the decision in that case that the Crown in England was not liable in tort, and it is worthy of note that at the end of his judgment the learned Chief Justice said [4] : - "The result has the sanction of all my learned brothers who heard the argument; but I am desirous of adding that some of the reasons have not the concurrence of my much respected brother Willes ". (The italics are, of course, mine). In Shaw Savill & Albion Co. Ltd. v. The Commonwealth [5] it was treated as clear that the officers responsible for the navigation of H.M.A.S. Adelaide were servants of the Commonwealth: see especially per Starke J. [6] and per Williams J. [7] . There is, I think, nothing in Enever v. The King [8] or in Baume v. The Commonwealth [9] to weaken or affect this view. The distinction taken in those cases seems to be in substance between an act or default of an officer in the course of his service under the Crown on the one hand, and an act or default in executing some independent duty cast upon him by the common law or by statute on the other hand. The distinction itself has been criticized, and it may be that it was not fully observed in Zachariassen v. The Commonwealth [1] and Field v. Nott [2] , though it most probably provided the reason why the person holding the office of Commissioner of Taxation, and not the Commonwealth, was made defendant in Jackson v. Magrath [3] . But, whether the distinction has been soundly applied or not, it has turned, as it seems to me, not on the presence or absence of the relation of master and servant as such (though it may, of course, be loosely said that the servant is not a servant quoad hoc) but on the question whether the servant is acting in the course of his employment by the Crown.

[62]

The view which seems implicit in the judgment of Jackson J. [4] would represent an enormous extension of liability, and would, in my opinion, go far beyond what justice requires. It cannot be doubted that the general rule of the common law is that which is stated in the judgment of Rich J. in Quince's Case. "The mere fact that the injury prevents a third party from getting a benefit from the person injured does not invest the third party with a right of action against the wrongdoer" [5] . It perhaps does not matter very much, for present purposes, whether we regard the rule as a rule relating to remoteness of damage, or whether we say that what it really means is that the wrongdoer has not been guilty of any breach of any duty owed by him to the third party. Lord Kinloch in Allan v. Barclay [6] stated the rule in much the same way as Rich J. He said: - "The grand rule on the subject of damages is that none can be claimed except such as naturally and directly arise out of the wrong done and such therefore as may reasonably be supposed to have been in the view of the wrongdoer". I am inclined to think, however, that his Lordship was really thinking in terms of duty, for he added: - "The personal injuries of the individual himself will be properly held to have been in the contemplation of the wrongdoer. But he cannot be held bound to have surmized the secondary injuries done to all holding relations with the individual, whether that of a master or any other". On the whole I would prefer to state the position in terms of duty, because it seems to me that, if the third party has a cause of action, it must rest on a distinct and different obligation from that subsisting between the wrongdoer and the person immediately injured. If we look at the matter in this way and think of Hay or Bourhill v. Young [1] , it appears absurd enough to say that, while the cyclist in that case owed no duty to the plaintiff, he did owe a duty to any third party who might suffer loss through an injury inflicted on a person run down by him.

[64]

But, while the general rule is clear, and while it would probably be generally agreed that cases such as I have been considering fall within it, an exception was in early times in England engrafted upon it. What is the extent of the exception, and what is the justification for the exception? Its justification suggests, I think, its extent, so far as it is necessary to consider its extent for the purposes of the present case. It would find, of course, its complete and absolute theoretical justification in a society in which slavery was a recognized institution. If I injure your slave, I damage your property. And it seems to be agreed that, in English law, its theoretical justification is to be found in the idea that a master had quodam modo a proprietary right in the services of his servant or a quasi-proprietary right in the servant himself. In a passage, quoted by Latham C.J. in Quince's Case [2] , Sir William Holdsworth (History of English Law, 2nd ed. (1937), vol. VIII, p. 429) speaks of the remedies given by law for the abduction of a servant, observing that they were supplemented by the provisions of the Statutes of Labourers. He adds: - "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". The modern idea of the service relation is not merely different from the old: it may be said to be the very antithesis of it. The conception was really appropriate only to the case of a household or "familia", in which the withdrawal of a unit was more or less bound to cause disorganization and monetary loss. The typical case was that of a child or an apprentice, who lived, as a rule, on his master's premises. It is very significant that both Pollock and Salmond have dealt with this branch of the law of tort under the heading of "Injuries to Domestic Relations". Winfield deals with it under the head of "Interference with Contract" along with such cases as Lumley v. Gye [3] but these cases involve a malicious interference with a right known to exist. Moreover the principle of such cases is not confined to cases of master and servant. Whatever may be the history of such actions, we are moving into different country altogether, when we come to cases where there is said to be a negligent interference with a right not known to exist.

[80]

In a case in which a pension is not to be taken into account in assessing damages recoverable by the person injured, it would seem very unreasonable to allow the payer of the pension to recover damages in respect of the pension from the wrongdoer. But, whether or not the case is one in which the pension must be taken into account in assessing the damages of the person injured, it would be contrary to principle that the payer of the pension should be able to recover damages in respect of the pension. The matter is explicitly covered by what is said by Lord Parker and Lord Sumner in the Amerika Case [5] . Lord Parker after observing that such damages are obviously not recoverable if the payment of a pension is made voluntarily, proceeds: - "But further, even if the pensions and allowances in question were granted pursuant to contracts between the Admiralty and the deceased seamen, I should still be of opinion that they could not properly constitute an item of damage for loss of service. They would in this case constitute deferred payment for services already rendered, and have no possible connection with the future services of which the Admiralty had been deprived" [1] . Lord Sumner says: - "Nor would it have assisted the appellants' case if they could have established that the making of these compassionate allowances by the Crown was in the nature of a contractual obligation. In any case the contract would have been a contract with the deceased man, and the damages must be measured by the value of his services which were lost, not by the incidents of his remuneration under the terms of his contract of employment" [2] . This is, as his Lordship proceeds to point out, entirely in accord with the principle of Bradburn's Case [3] . So Cohen L.J. (as he then was) in Payne v. Railway Executive [4] says: - "the accident in this case was not the causa causans of the receipt by the first plaintiff of the disability pension, but the causa sine qua non. The causa causans was his service in the Royal Navy". Cf. what is said by Singleton L.J. [5] .

[85]

The expression must be considered for the purposes of this case in the particular context of a principle of the common law, which has its roots in the remote past. The principle has sometimes been referred to as if it formed an exception to the rule that no liability arises for breach of a duty of care unless damage to the person to whom the duty was owed is the proximate result of the breach; but it is not a principle which is directed to questions of proximity or remoteness of damage resulting from breach of a duty of care. It provides a remedy for the wrongful invasion of a quasi-proprietary right which a master is considered to possess in respect of the services which his servant is under an obligation to render him. If that right is invaded by a wrongful injury to the servant which disables him from performing his due service, the injuria to the master is collateral to, and not consequent upon, the injuria to the servant: see Martinez v. Gerber [1] . The speeches delivered by their Lordships in the case of the Admiralty Commissioners v. S.S. Amerika [2] explain how it is that the law concedes the existence of this quasi-proprietary right or interest. Briefly stated, the explanation is that the law has perpetuated a notion which originally was a corollary of the ancient conception of the relationship of master and servant as one of status (Mankin v. Scala Theodrome Co. Ltd. [3] ). That conception has gone, but the notion of a right in the master, as a species of property, that others shall not, by their wrongful acts, deprive him of the benefit of the relation between himself and his servant has not been abandoned. An infringement of that right entitles the master to recover damages. In common law pleading the appropriate action was distinguished by the words which attributed to the defendant's wrongful conduct the character which alone entitled the plaintiff to succeed: per quod servitium amisit. Unless servitium had been lost, there was no title to sue; and there could be no servitium to be lost unless the relation of master and servant existed between the plaintiff and the person upon whom the defendant had inflicted a wrongful injury. This is not the occasion to consider whether the principle expounded in Donoghue v. Stevenson [4] and cases which have followed it, may enable damages to be recovered in a case where that relationship does not exist but the circumstances are such that the loss of services was a reasonably foreseeable consequence of a failure to exercise due care. No such circumstances are alleged in the information in this case. The information is supported by reference only to the principle of the common law upon which the action per quod servitium amisit is founded. That principle is of a technical character, and the question whether this case falls within it must of necessity be considered on technical lines. Even those who regard the limitations of the action per quod as anomalous, and think that the action ought to be available in cases of a wider description than those in which it has hitherto been allowed, must concede that, as the law stands, the action is so rigorously confined to cases of master and servant in that strict sense which formerly connoted a status, that nothing but legislation could now extend it to other cases.

[89]

It is important to notice in this connection a point of fundamental distinction between actions for loss of services by physical injury to a servant and actions for enticing a servant to leave his employment, or for receiving or continuing to employ the servant of another. The latter class of actions has not been restricted to the case of a "servant" in the original sense of the term; it has been extended to apply to all contracts of employment: Lumley v. Gye [6] (see especially De Francesco v. Barnum [7] ), in which Fry L.J. expressly distinguished between a case of master and servant and one merely of employer and employed); and by parity of reasoning a right of action has been conceded for every interference with contractual relations committed knowingly and without justification (Bowen v. Hall [8] ; Quinn v. Leathem [9] ). The conception which has led to this development of the law may be said to be that a person has a right, a right in rem, in respect of the contractual rights, the rights in personam, which he possesses as against the other party to his contract. This conception cannot be relied upon in order to extend the scope of the action for loss of services by injury to the servant, for that is an action which depends, not upon the existence of a personal right in the master as against the servant to have the agreed services rendered, but upon a supposed real right in the master in respect of the services themselves which are the fruit of the relationship of master and servant. Its origin, as has been mentioned, is to be found in the status of a servant in older times, and accordingly it is available if the relationship exists, whether or not it was created by binding contract; in other words, whether or not the master has any legally enforceable right against the servant to have the services performed. It is no doubt for this reason that the courts have always held a declaration in such an action to be sufficient if it alleges that the person injured by the wrongful act of the defendant was the plaintiff's servant, although it does not allege that he was hired at any wages or salary or under a binding contract of service: see Martinez v. Gerber [1] ; Evans v. Walton [2] . It is the fact that the plaintiff and the person injured stand in a particular relationship to one another which gives the title to sue; and that title depends not at all on the manner in which the relationship was created or on the existence of any right in the master as against the servant to insist upon its continuance. These considerations make it impossible, by a process of judicial extension resembling that which took place in Lumley v. Gye [3] to allow an action for loss of the services of a person standing in a relation to the plaintiff other than that of a servant.

[91]

It is necessary, then to examine the meaning of the words "master and servant" in the statement that a wrongful injury to A, whereby B loses his services, gives a right of action to B against the wrongdoer if B and A were master and servant. Authorities which give a meaning to the expression as used in other contexts may have little or no value for this purpose; they are not necessarily in pari materia. Sir John Macdonell remarked that "Judges have generally acted in regard to this matter on the principle omnis definitio in lege periculosa est They have been content to deal with each case as it arose": The Law of Master and Servant, 2nd ed. (1908), at pp. 7-9. In Short v. J. & W. Henderson Ltd. [4] , Lord Thankerton, in a judgment with which the rest of their Lordships concurred, referred to four suggested indicia of a contract of service, in the sense in which that expression was used in a Workmen's Compensation Act 1925 Imp. (15 & 16 Geo. 5 c. 84) namely: (a) the master's power of selection of his servant; (b) the payment of wages or other remuneration; (c) the master's right to control the method of doing the work; and (d) the master's right of suspension or dismissal. He mentioned that the learned Judge below had added "that a contract of service may still exist if some of these elements are absent altogether, or present only in an unusual form, and that the principal requirement of a contract of service is the right of the master in some reasonable sense to control the method of doing the work, and that this factor of superintendence and control has frequently been treated as critical and decisive of the legal quality of the relationship". His Lordship then said: "Modern industrial conditions have so much affected the freedom of the master in cases in which no one could reasonably suggest that the employee was thereby converted into an independent contractor, that, if and when an appropriate occasion arises, it will be incumbent on this House to reconsider and to restate these indicia. For example (a), (b) and (d) and probably also (c), are affected by the statutory provisions and rules which restrict the master's choice to men supplied by the labour bureaux, or directed to him under the essential work provisions, and his power of suspension or dismissal is similarly affected. These matters are all affected by trade union rules, which are, at least primarily, made for the protection of the wage-earners". This serves as a warning against treating judicial descriptions of the symptoms by which the relation of master and servant has been recognised as existing for the purposes of some branches of the law, as if they are necessarily definitive of the substance of that relation for all purposes.

[95]

It will be seen that three elements are involved: first, the relationship must entail, on the part of the servant, obedience to orders; secondly, the obedience to orders that is required is obedience to orders in doing work; and, thirdly, the doing of the work must be for the benefit of the master, that is, it must relate to his own affairs. As to the first, no more need be said than this, that the obligation of obedience exists while the relationship continues. The relationship may be voluntary; and whether voluntary or not, it may be determinable at the will of either party; but without the obligation to obey orders there can be no meaning in the relationship, and it therefore cannot subsist. As to the second element, that the obedience entailed must be obedience to orders in doing work, the point which is vital is that the master's authority must extend both to ordering that the work shall be done and to directing how it shall be done. Bramwell L.J. said, in Yewens v. Noakes [1] : "A servant is a person subject to the command of his master as to the manner in which he shall do his work"; and in Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool) Ltd. [2] , Lord Porter said " it is not enough that the task to be performed should be under his (the master's) control, he must also control the method of performing it". Citations to the like effect might be multiplied. As to the third element, the statement that the doing of the work must be for the benefit of the master does not mean, of course, that the direct benefit from the work itself must necessarily accrue to the master; he may, without altering the relationship, direct his servant to do work which will benefit another. A good illustration of this may be found in Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool) Ltd. [3] . But the doing of work by one person must be required by another as a means whereby that other may attain ends of his own. A foreman, a head of a government department, or an army officer, may have full power to give the most detailed orders to a subordinate as to the manner in which the latter shall do work, and yet no one would suppose that the relation of master and servant exists between them. The point is that the power of direction residing in a person must belong to him for the purpose of enabling him to conduct his own affairs; and only if that is the situation is it possible for him to complain that conduct causing him to lose the service is an infringement of a right to enjoy them which he may vindicate in an action per quod servitium amisit.

[109]

A decision which, if correct, is against this view was given by A. T. Lawrence J. in Bradford Corporation v. Webster [1] in which the learned Judge held that a constable appointed by a municipal corporation was a servant of the corporation, and that the corporation could recover against a person by whose wrongful act the constable was disabled from performing his duties. No reasons for this conclusion were stated. In Fisher v. Oldham Corporation [2] McCardie J. thought that the Bradford Corporation Case [1] might, perhaps, be supported "as resting on a special or extremely artificial form of action", in which "so slender a claim" as that of a father for the loss of the service of his daughter "may afford a basis for an action". His Lordship had no occasion to form a considered view on the matter. Earlier in this judgment it has been shown that the case of a father suing for loss of his child's services provides a cogent illustration of the insistence of the law upon confining the action per quod servitium amisit to cases where the peculiar relation of master and servant in its strict sense exists. In my opinion the Bradford Corporation Case [1] ought not to be accepted as a correct decision on the question of liability. The decision in Fisher v. Oldham Corporation [2] is one denying the liability of the body which appointed a constable for acts done by him in that capacity. It is in line with, and in fact follows, Enever v. The King [3] and contains a valuable discussion of the nature of a constable's office. McCardie J. said [4] "He is a servant of the State", and then explained the statement by the words: "a ministerial officer of the central power, though subject, in some respects, to local supervision and local regulation". It is difficult to suppose, in view of the whole tenour of the judgment, that, if his Lordship had had to decide the question with which the present case is concerned, he would have held that the central power and its ministerial officer are, in the strict sense, master and servant.