Groves v Commonwealth [1982] HCA 21;

Groves v Commonwealth [1982] HCA 21; - HCA 1982 case summary — Zoe

[8]

3. The submission made on behalf of the Commonwealth was that no tortious liability can arise when a member of the armed forces is guilty of lack of reasonable care in the performance of his duties and in consequence another member of the forces suffers personal injuries. The reason for this immunity from ordinary liability was said to be that the relationship between serving members of the armed forces, at least while they are on duty, is governed entirely by the prerogative and by the statutory provisions by which the armed forces are established and regulated. Those provisions, so far as the Royal Australian Air Force are concerned, consist of the Defence Act 1903 (Cth), as amended, the Air Force Act 1923 (Cth), as amended, the regulations under those Acts, and the Imperial Air Force Act applied by the Air Force Act 1923. But nothing in those provisions has anything to say about the common law duty of one member of the forces to take reasonable care for the safety of another, or about the rights of one member injured by the negligence of another. The statutes and regulations do not deal with the duties of members of the armed forces to each other as citizens. The argument put by the learned Solicitor-General for the Commonwealth relied less on anything in the statutory provisions themselves, than on the line of authorities, mentioned by Windeyer J. in Parker v. The Commonwealth [1965] HCA 12; (1965) 112 CLR 295, at p 302 , which he submitted supported the conclusion that the relationship between members of the armed forces on duty is governed exclusively by military law. I shall refer later to those cases, which in my opinion do not support that proposition. As to the argument based on the prerogative, it would be quite contrary to the principles of the common law to hold that one person may justify a breach of duty to another by claiming that he had been placed in his position by action under the prerogative. It is no doubt true that the common law itself provides a justification, based on necessity, for acts done in the course of actual military operations. Notwithstanding the criticisms of Professor Hogg (Liability of the Crown (1971), pp. 95-96), I have no difficulty in accepting the correctness of what was said by Dixon J. in Shaw Savill and Albion Co. Ltd. v. The Commonwealth [1940] HCA 40; (1940) 66 CLR 344, at pp 361-362 . To hold that there is no civil liability for injury caused by the negligence of persons in the course of an actual engagement with the enemy seems to me to accord with common sense and sound policy. The old cases mentioned in an interesting article by Mr. Erle Richards in the Law Quarterly Review, vol. 18 (1901), p. 133 appear to decide that the rights of the individual are subordinated to the necessities of the State when military operations take place in time of war, and that this is so when the act causing damage was done in the course of actual fighting was recognized in Burmah Oil Co. Ltd. v. Lord Advocate [1964] UKHL 6; (1965) AC 75, at pp 110, 162 . It is unnecessary to consider what may be done under the prerogative by way of preparation for a military engagement or in the course of an emergency short of war. However, it is clear that the prerogative cannot override the ordinary civil rights of a citizen because he is also a member of the armed forces when there is no war or civil disturbance or emergency of any kind. (at p117)

[11]

The cases to which Sir Victor Windeyer referred were all cases in which the conduct of the defendant was intentional and purported to have been done in the course of military duty or discipline, and the plaintiff's case was that there had been an exercise of authority that was malicious or otherwise wrongful. Thus Sutton v. Johnstone [1786] EngR 18; (1786) 1 TR 493 (99 ER 1215) was a case of malicious prosecution brought by the captain of a warship against his commander in chief who had brought him before a court-martial for disobedience. In Dawkins v. Lord Rokeby [1866] EngR 5; (1866) 4 F & F 806 (176 ER 800) , Dawkins v. Lord Rokeby (1873) LR 8 QB 255 and Dawkins v. Lord Paulet (1869) LR 5 QB 94 , Lieutenant-Colonel Dawkins sued, respectively, his commanding officer for false imprisonment, malicious prosecution and conspiracy to cause his removal from the army, and later for defamatory statements made at a military court of inquiry, and another senior officer for defamatory statements in a report to the Adjutant-General. Fraser v. Hamilton (1917) 33 TLR 431 was an action brought by a former naval officer against the Second Sea Lord of the Admiralty for wrongfully and maliciously causing the plaintiff to be retired from the navy. Heddon v. Evans (1919) 35 TLR 642 was a claim for damages by a former private soldier for slander, false imprisonment and malicious prosecution by his former commanding officer. In all these cases it was held that no action lay, even if malice was proved. No doubt the argument of policy in favour of these decisions was that in cases of that kind it may be thought that to allow a member of the forces to bring an action in the civil courts would be destructive of discipline, and that the preservation of discipline should be regarded as paramount. Moreover, the Articles of War, and, later, the regulations governing the armed forces, provided some remedies for redress of grievances. The contrary view is that discipline would not be adversely affected by allowing a member of the forces a remedy for a malicious use of authority by his superior officer. The controversy to which these decisions gave rise has not been resolved and the question has been left open by the House of Lords in Fraser v. Balfour (1918) 87 LJKB 1116, at p 1118; 34 TLR 502, at p 504 and by this Court in Gibbons v. Duffell [1932] HCA 26; (1932) 47 CLR 520, at pp 527, 531, 534 . However, the arguments in favour of the view that no action should lie in cases involving discipline have no force in a case of negligence which occurs in circumstances which are not peculiarly military in character. The administration of the armed forces is not likely to be prejudiced because one member of the forces can require a judge or jury to consider whether another had acted with due care in a matter which was not peculiar to the service, but precisely analogous to a situation that might arise in civilian life. The right of complaint against the improper exercise of disciplinary authority is of no benefit in such a case. I can therefore see no reason of policy why the ordinary rules of the common law should not apply. (at p119)

[46]

22. The momentous nature of a decision generally excluding servicemen from recourse to the remedies of the common law has been fully recognized, first in the House of Lords and later in this Court. In Fraser v. Balfour (1918) 87 LJKB 1116; 34 TLR 502 the plaintiff sued (inter alia) in respect of what he claimed to have been his wrongful compulsory retirement from the Royal Navy. When the case was before the Court of Appeal the decision of the Exchequer Chamber in Dawkins v. Lord Rokeby (1873) LR 8 QB 255 , approving a line of cases beginning with Sutton v. Johnstone [1786] EngR 18; (1786) 1 TR 493 (99 ER 1215) , was regarded as establishing that "a case involving questions of military discipline and military duty alone is cognizable only by a military tribunal, and not by a Court of law". However on appeal to the House of Lords this point was regarded as still open, being described as involving "constitutional questions of the utmost gravity", not to be resolved until the facts came before the House in complete and satisfactory form. No report exists of any subsequent stage of the case. In Gibbons v. Duffell [1932] HCA 26; (1932) 47 CLR 520 members of this Court were notably cautious in their treatment, not only of the alleged principle in Dawkins v. Lord Rokeby but also of earlier cases on which it relied. The joint judgment of the Chief Justice and of Rich and Dixon JJ. referred in some detail to what had been said of Dawkins v. Lord Rokeby in Fraser v. Balfour and, confining themselves to the narrow point actually in issue, whether a New South Wales police officer's report was subject to absolute or only qualified privilege, chose to express their conclusion on it in these words: "there is no sufficient warrant in the principles of common law for denying to one police officer the protection of the law from malicious defamation by another" (1932) 47 CLR, at p 528 . In his judgment Starke J. said of another of the earlier cases in the line of authority reaching from Sutton v. Johnstone to Dawkins v. Lord Rokeby, that of Dawkins v. Lord Paulet (1869) LR 5 QB 94 , that "that decision, Sir Frederick Pollock assures us (Torts, 11th ed. (1920), p. 267), is not received as conclusive" (1932) 47 CLR, at p 531 and see further (1932), 47 C.L.R., at p. 532. . The joint judgment of the Chief Justice, Rich and Dixon JJ. had said of Dawkins v. Lord Paulet that it was decided "not without the dissent of Cockburn C.J." (1932) 47 CLR, at p 526 . Evatt J. was more forthright in his treatment of Dawkins v. Lord Paulet, citing at length the views of Mr. Spencer Bower that it was wrongly decided and that the dissenting judgment of Cockburn C.J. was to be preferred (1932) 47 CLR, at p 534 . The judgments in Gibbons v. Duffell thus not only affirm for Australia what was said in Fraser v. Balfour but also, while in no way deciding the present question, can, we think, be said to view warily the notion that common law remedies should, upon grounds of alleged public policy, be denied to those who serve the Crown. (at p128)

At a glance

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Judgment (82 paragraphs)

Groves v Commonwealth [1982] HCA 21; (1982) 150 CLR 113 (4 May 1982)

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Legislation Cited (4)

Cases Cited (15)