Commissioner For Railways (NSW) v Scott

For the reasons I have given I respectfully agree with the Chief Justice and with my brothers Kitto, Taylor and Menzies and with Owen J. in thinking that the action per quod servitium amisit is not limited to the cases of domestic servants in the way the Court of Appeal has held it to be. The Chief Justice in his learned survey has, I venture to think, shown convincingly that it was not so limited in the past and that if it is to be so limited now it will be by a departure from hitherto accepted law. For reasons that he has given he, nevertheless, would dismiss this appeal. I feel, however, that we should follow a different course. In a passage in Wright v. Wright [2] , which it is unnecessary to set out, the Chief Justice has indicated the difficulties which arise in circumstances such as this where, in relation to a rule of the common law, our views differ from those of courts in England. In this case, I consider that to limit the cause of action on which the plaintiff relies to injuries to menial and domestic servants would be to create a further anomaly in the law, that such a limitation is not demanded by social needs, and is not supported by authority, logic, precedent or history. I would therefore allow the appeal.