Commonwealth v Quince [1944] HCA 1

Commonwealth v Quince [1944] HCA 1 - HCA 1944 case summary — Zoe

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not. Even if he was not a servant of the Crown in the ordinary sense of contractual relationship, the airman concerned in this case was, nevertheless, in all the circumstances, a servant of the Crown. Although taken by him voluntarily, by taking the oath of enlistment in accordance with the terms of reg. 94 under the Air Force Act 1923-1941 the airman became, by virtue of reg. 95 - which is similar in substance to s. 38 of the Defence Act 1903-1941 - bound to serve in the Air Force until discharged therefrom. The airman may be regarded as a citizen performing air-force duties under the law of the Commonwealth in the same sense that a public servant is a citizen performing civil duties under the law of the Commonwealth, The relation of a civil public servant to the Crown is contractual (Lucy v. The Commonwealth (1) ). The contract between the airman and the Crown may be of a somewhat exceptional kind and possess some unusual features, but it is a contractual relationship. It is a relationship arising from a voluntary agreement between the parties. In any case, the Crown was entitled to the airman's services, and having been deprived of those services by a tort is entitled to damages or compensation from the tortfeasor ; that is so whether there was a contract or not, The basis of the action is the injury done to the right of the Crown to the services of the airman. For that purpose the existence of a binding contract is not necessary. It is sufficient if there has been an interference with a legal or statutory right to the services, that is, an interference with service whether it be contractual, de facto or constructive. In such a case an action per quod servitium amisit will lie (Grinnell v. Wells (2); Harper v. Luffkin (3); Martinez v. Gerber (4); Evans v. Walton (5); Pollock on Torts, 14th ed. (1939), p. 183 ; Salmond on Torts, 9th ed. (1936), pp. 383-387). There is not any inconsistency between the general existence between two parties of a relationship of master and servant and the absence of any liability on the part of the master in particular cases for the wrongdoing of the servant. Hnever v. The King (6) and Baume v. The Commonwealth (7) merely illustrate that a servant or employee may not, in particular instances, affix his master or employer with liability under the maxim respondeat superior because he may be exercising a discretion conferred upon him by law as an individual. In considering the matter of respondeat superior, it must depend entirely upon what is the act of the servant in respect of which it is sought to make the master liable (Shaw Savill and

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respondeat superior and per quod servitium amisit is pointed out in Fisher vy. Oldham Corporation (2). The words "servants" and "employers" are commonly used as applicable to persons in the naval or military service as well as to those in the civil or ordinary public service of the Crown: See Halsbury's Laws of England, 2nd ed., vol. 28, p. 599, par. 1229, and cases there cited, Lucas v. Lucas (3) and Williams v. Howarth (4). The decision in McArthur v. The King (5) turns entirely upon the wording and history of the particular statute there under consideration. At the relevant time there was not any regulation depriving the airman of his right to continue being paid while disabled. A claim similar in essential facts to the claim now before the court was decided in favour of the Crown in Attorney-General v. Valle-Jones (6). So long as a person remains a member of the armed forces the Crown is bound not only to pay him but also to maintain him. Expenditure incurred by the Crown in curing and maintaining a member of the armed forces disabled whilst in its service is, having regard to train- ing, efficiency and morale, reasonably incurred: See Attorney- General y. Valle-Jones (7), in arguendo, and James Finlay & Co. Ltd. v. N.V. Kwik Hoo Tong Handel Maatschappij (8). Moneys paid to the airman by way of pension are recoverable from the respondent (Bradford Corporation v. Webster (9) ). Medical expenses also are recognized, upon principle and authority, as a proper head of damages (Hall v. Hollander (10); Dixon v. Bell (11) ) - see also Barnes v. Pooley (12) and Smaill v. Alexander (13). Damages conse- quential upon the tort and causing the loss of services are recoverable. It is part of a measure of the value of the services that there is a habitual practice on the part of the Crown of rendering free hospital and medical treatment to, and granting a pension to, members of the armed forces injured whilst travelling on leave: See National Security (War Pensions and Repatriation Benefits) Regulations, reg. 6. The pension paid to the airman was not a mere compassionate allowance as in Admiralty Commissioners v. SS. Amerika (14), but was as much a part of the consideration for the services as was held to be the pension in Bradford Corporation v. Webster (15).

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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 T'raffic 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 £1 19s. 7d. The Commonwealth sued the defendants for damages for the loss of the services of Rowland, claiming altogether the sum of £589 13s. 3d., made up of pay and allowances, hospital and medical expenses, pension and damage to clothing, as stated. Judgment was given for the Common- wealth for the sum of £1 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 defendants' tort. I presume that the claim for damage to cloth- ing 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

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In Clode, Administration of Justice under Military or Martial Law, 2nd ed. (1874), at pp. 72-82, where the obligations to the Crown created by enlistment are discussed, it is pointed out at p. 73 that under military law as it then existed (and subject to certain ameliora- tions it is in substance the same to-day) a soldier (and an airman is in the same position) has no right to vacate his enlistment, and that, while he is in the service of the Crown, he is no longer sui juris to contract any other obligation, nor can he exercise any rights of citizen- ship which may conflict with the obligation of implicit obedience under which he stands pledged to fulfil his military duty. " The general purview of the Military Code shows that a soldier gives him- self up wholly to his superior officerin . . . civil relations, loyalty, internal and external behaviour. He wears his clothes, cuts his hair, holds his person, and regulates his step and action at the command of officers appointed by the Sovereign." lode proceeds to point out that the law which a member of the Forces has to obey may be divided into two branches: (1) the lex scripta, which in the present case includes the Air Force Act, and the regulations and other statu- tory provisions made under the authority of that Act; and (2) the lea non scripta, comprising those lawful orders which, viva voce or otherwise, the commanding officer may from time to time issue bidding a subordinate to do or refrain from doing, as a member of the forces, certain acts till then undisclosed to him. " Of course in war there is no limit to obedience ('which is the first, second, and third duty of a soldier at all times') save a physical impossibility to obey. 'A subordinate officer must not judge of the danger, propriety, expediency, or consequence of the order he receives: he must obey - nothing can excuse him but a physical impossibility. 'A forlorn hope is devoted - many gallant men have been devoted. Victories have been obtained by ordering men upon desperate ser- vices, with almost a certainty of death or capture.' In peace these orders must be plainly within the limits of the officer's authority."

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In Tobin v. The Queen (1) it was held that a petition of right would not lie where a commander of a ship of the Queen employed in the suppression of the slave trade on the coast of Africa seized a schooner belonging to the suppliant which he suspected of being engaged in slave traffic; and, it being inconvenient to take her to a port for condemnation in a Vice-Admiralty Court, caused her to be burnt. The judgment of the Court was founded, inter alia, on two grounds that are now well established, the one that at common law the Crown can do no wrong, so that a petition of right will not lie in respect of a tort committed by one of its servants; and the other, which is the same as that discussed in the cases to which I have already referred, that the commander was engaged in perform- ing an independent duty imposed upon him by statute. But the Jourt also proceeded to say that the supposed analogy between the relation of the Queen to a captain in Her Majesty's Navy and the relation of a master to a servant varied in the following respects, firstly 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. If the first is a good ground it would apply to most public servants who are appointed by some Minister or public body representing the Crown and not by the Crown itself. Further, the plaintiff in the present case is the Commonwealth in right of the Crown and there can be no question that it is the Commonwealth which through appropriate instrumentalities controls the enlistment of volunteers in its armed forces. As to the second ground, the captain of a ship has, no doubt, a wide discretion, but so has the general manager of a business, and there seems to be no reason in principle why a captain of one of His Majesty's ships should not, within the scope of his authority, be the agent of the Crown. The reason now generally advanced for not suing the Crown in England, but for suing the captain of the ship, is that the Crown in England cannot be sued in tort. But the position is different in Australia, where the Commonwealth can be sued in tort, so that in Shaw Savill and Albion Co. Lid. v. The Commonwealth (2), which is reported on demurrer, it was 'not disputed that the plaintiff company could sue

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Judgment (170 paragraphs)