CASE STATED under Judiciary Act 1903 (Cth), s. 18.

GIBBS C.J. I have had the advantage of reading the reasons for judgment with their conclusion and in general with their reasons. I would however state for myself my reasons for holding that one member of the armed forces may sue another for damages for personal injuries sustained as a result of a careless act or omission of the latter in the performance of his duties in circumstances such as those of the present case. (at p116)

2. The question in the present case arises in time of peace and in relation to activities which have no characteristic peculiar to the armed forces. The failure to insert the locking pins in the ladder which gave access between the aircraft and the ground, the act of leaving the ladder in an apparently normal position without any indication that the pins were missing and the failure to inform the plaintiff that the pins were not in position could equally well have occurred if all those concerned had been civilians engaged in connexion with a civilian aircraft. It cannot be doubted that if the persons guilty of the careless acts and omissions had been civilians, the plaintiff, although a member of the armed forces, would have been entitled to bring an action for negligence against them. It is equally clear that if the plaintiff had been a civilian, he would have had a right of action against the members of the armed forces whose negligent acts caused his injuries. In these circumstances, it would indeed be anomalous if the plaintiff has no cause of action simply because he is a member of the armed forces and the careless act or omission was committed by a fellow member of the forces. (at p116)

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)

4. The learned Solicitor-General for the Commonwealth referred us to a line of cases whose effect was stated by Windeyer J. in Parker v. The Commonwealth (1965) 112 CLR, at p 302 as follows:

"The courts in England have for nearly two hundred years said, and rightly in my opinion, that to allow a member of the forces to bring an action against another member for an act done in the course of duty would be destructive of the morale, discipline and efficiency of the service, and that for that reason the common law does not give a remedy even if the conduct complained of were malicious."

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)

5. The short answer to the argument of the Commonwealth seems to me to be that there is no principle, and no reason of policy, that would exclude the operation of the ordinary rules of the common law of negligence simply because the plaintiff and the defendant both happen to be members of the armed forces and the act complained of occurred in the course of military, naval or air force service. The question whether the position will be different if the injuries occurred during activities of a purely military character - e.g., weapons training, or a tactical exercise - may be left until it arises. (at p119)

6. Once it is held that the member of the forces who was guilty of the negligence is liable to the plaintiff, it follows that the Commonwealth also is liable under s. 64 of the Judiciary Act. It is unnecessary for me to add anything to what my brethren have said in relation to this aspect of the matter. (at p119)

7. I consider that the question asked in the stated case should be answered yes. (at p119)

STEPHEN, MASON, AICKIN AND WILSON JJ. The plaintiff was, in 1973, an enlisted airman in the Royal Australian Air Force. In the early hours of 3 July 1973 he was a member of the crew of an aircraft which was stationary on the ground at Mt. Isa airport. The aircraft was engaged in the carriage of civilian passengers, in a time of peace. The plaintiff went to leave the aircraft and was injured when he fell while climbing down a folding ladder to the ground. The ladder, part of the aircraft's equipment, should have had locking pins fitted in place to prevent it from folding while in use. But the pins could not be found and when others of the crew, knowing this, had earlier used the ladder they had manually restrained it from folding under their weight. The plaintiff had not been told that the locking pins were missing, did not know that they had not been fitted in place and fell to the ground when the ladder folded under his weight as he climbed down it. (at p119)

2. In June 1979 the plaintiff instituted proceedings in this Court against the Commonwealth seeking damages for his injuries. He alleges negligence on the part of other crew members in failing to locate and insert the locking pins, in leaving the ladder in an apparently normal position without having inserted the pins and in having failed to warn him that the pins were not in position. (at p120)

3. The following question has now been stated to the Full Court by way of a special case:

"Whether in the circumstances agreed and alleged an action in negligence is maintainable by the Plaintiff against the Commonwealth of Australia arising out of the negligent acts or omissions of a fellow member of the Armed Services whilst on duty." (at p120)

4. It may seem remarkable that this question should not have been judicially resolved long ago, both in this country and elsewhere in the common law world. The reason why it still remains unresolved differs in the various jurisdictions. In Australia the Commonwealth has, for some time past, adopted a conscious policy calculated to leave the question unresolved. In defending actions by servicemen founded upon the negligence of fellow servicemen it has not, until now, put in issue the availability against it of the plaintiffs' cause of action, being content to confine itself to the issue of negligence or no negligence - see, for example Fazio v. The Commonwealth (1970) 91 WN (NSW) 806 , Thomsen v. Davison (1975) Qd R 93 , Greenwood v. The Commonwealth [1975] VicRp 84; (1975) VR 859 and Dessent v. The Commonwealth (1977) 51 ALJR 482 ; the position is described in Mr. Ashton's article in University of Queensland Law Journal, vol. 10 (1978), p. 157. It is also referred to by Begg J. in Connell v. The Commonwealth (1979) 1 NSWLR 653, at pp 656-657 . In the present case for the first time the Commonwealth has sought to have the question argued and resolved. (at p120)

5. Mr. Ashton's article also refers to legislation of this century which in the United Kingdom, Canada and New Zealand now constitutes an express bar to such actions and which, in the United States, and as a result of doctrines unique to that jurisdiction, has been interpreted as imposing such a bar. Hence the absence of modern decisions in those jurisdictions. That the matter did not arise in earlier times, before the enactment of such legislation, was, no doubt, principally because procedurally the only remedy available against the Crown was by way of petition of right, and that was held to be available only in contract, not in tort - see generally Hogg, Liability of the Crown (1971), pp. 1-7; the doctrine of common employment may also have played some part in deterring such litigation. (at p120)

6. In now seeking some definitive decision the Commonwealth, contending for a negative answer to the question stated in the special case, places to the forefront of its argument what was said by Windeyer J. in Parker v. The Commonwealth [1965] HCA 12; (1965) 112 CLR 295 ; it also relies upon a line of English authority from the last century and upon certain policy considerations. (at p121)

7. The question can best be considered by isolating its elements. For such an action as the plaintiff now brings to be maintainable against the Commonwealth the plaintiff must establish, first, the existence of a legally recognized duty of care owed to him by other crew members, secondly, the vicarious responsibility of the Commonwealth for any breach of that duty and, thirdly, a consequent liability of the Commonwealth in damages. We have expressly referred to vicarious liability because the facts of this case make it clear that if the plaintiff is to succeed it will be because of the tortious nature of acts or omissions of his fellow crew members and not because of any direct want of care on the part of the Commonwealth. (at p121)

8. It is the first of these three matters, whether in the eyes of the law other crew members owed to the plaintiff a duty of care, which to our minds presents the true problem in this case. If such a duty, recognized by the law, was owed to the plaintiff the Commonwealth would, we think, be vicariously liable for any breach of that duty; and the combined operation of ss. 56 and 64 of the Judiciary Act 1903 (Cth) would then enable the plaintiff to recover damages against the Commonwealth. We will state our reasons for these two conclusions before returning to what we regard as the central problem in the case. (at p121)

9. Whether or not the Commonwealth is vicariously liable for the acts of members of the armed forces is a question unconnected with the identity of the particular plaintiff; it arises whether or not the particular plaintiff is a serviceman. Shaw Savill and Albion Co. Ltd. v. The Commonwealth [1940] HCA 40; (1940) 66 CLR 344 was a case of the owner of a ship, damaged in a collision with a naval vessel, seeking damages from the Commonwealth and alleging negligence on the part of officers of the Royal Australian Navy. Dixon J., with whom Rich and McTiernan JJ. agreed, said (1940) 66 CLR, at p 360 :

"It may be assumed that the liability of the Commonwealth to be sued in tort means that if an officer or servant of the Crown in right of the Commonwealth acting in the course of his service under the authority of the Crown, and not for the purpose of exercising or fulfilling an independent power or duty, commits a civil wrong, then the Commonwealth is vicariously liable for his breach of duty."

"In the present case, at all events, the liability of the Commonwealth must be vicarious; it must depend on the existence of a duty of care either in the officers and ratings taking part at the time of the collision in the navigation of the warship or in the officers who, according to the plaintiff, ought to have supplied the information of the Coptic's course and probable whereabouts or in those who, notwithstanding such information, laid the course of the warship."

Starke J. (1940) 66 CLR, at pp 352-353 pointed out that, in contradistinction to the English position, the Constitution and ss. 56 and 64 of the Judiciary Act enabled litigants to pursue claims in tort against the Commonwealth; he concluded that:

"The Commonwealth is thus made responsible for the acts, neglects or defaults of its officers in the course of their service as in a suit between subject and subject unless the officer is executing some independent duty cast upon him by the law."

"The Commonwealth is liable for the acts and defaults of its servants committed in the course of their duty in the same way as in a suit between subject and subject. In circumstances, therefore, where an action in Admiralty can be brought in England against the captain of an English warship for damage caused by its negligent navigation, a proceeding can be brought in this Court against the Commonwealth for damage caused by the negligent navigation of an Australian warship." (at p122)

10. As later judicial references to it confirm, Shaw Savill is accordingly authority for the proposition that if members of the armed forces are in breach of a duty of care owed by them to others the Commonwealth will bear vicarious liability. Shaw Savill was also much concerned with the distinction between torts committed in the course of active operations against the enemy and those committed while other activities of the combatant services in time of war were being undertaken. But such distinctions have no relevance to the present case, that of the operation of a service aircraft in peacetime as a passenger transport aircraft carrying a Commonwealth Minister and others about the country on their official duties. (at p122)

11. In Attorney-General (N.S.W.) v. Perpetual Trustee Co. Ltd. [1952] HCA 2; (1952) 85 CLR 237, at p 249 Dixon C.J. said:

"No one has yet denied that the Crown is liable for the tort of an officer committed within the scope of his duty, except in situations where the duty which he is attempting to fulfil is one cast upon him by law to be executed as an independent responsibility, so that the Crown is not acting through him."

At p. 252, his Honour speaking of a stage in the Shaw Savill litigation subsequent to that reported in [1940] HCA 40; 66 C.L.R. 344, being the stage at which the action ultimately came on for trial before him, said that he had "ultimately held the Commonwealth liable for the fault of the captain of Adelaide in setting or keeping a particular course, it being treated as obvious throughout that the Commonwealth was responsible vicariously for the fault of the captain or of any other naval officer in the navigation of the ship". Fullagar J. said, at p. 283:

"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."

His Honour, like Dixon J., went on to affirm that in the Shaw Savill case "it was treated as clear that the officers responsible for the navigation of H.M.A.S. Adelaide were servants of the Commonwealth". In his dissenting judgment Williams J. (1952) 85 CLR, at p 266 also referred to the rule respondeat superior, describing it as rendering the Crown, both in right of the Commonwealth and of the State of New South Wales, vicariously liable for wrongs done to members of the public by its servants. (at p123)

12. Finally, in Parker, Windeyer J. had to consider the case of a widow's claim against the Commonwealth arising out of a collision in peacetime between two naval vessels. The deceased was held to have been a civilian. His Honour said (1965) 112 CLR, at p 301 , "the persons whose negligence is said to have caused the collision are, or at the time were, members of the Navy". His Honour cited with approval the passage from the judgment of Starke J. in Shaw Savill set out above and adopted what had subsequently been said by the members of this Court in Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [1956] HCA 82; (1956) 96 CLR 397, at p 416 , that the consequence of the provisions of the Constitution and of the Judiciary Act is "to impose upon the Commonwealth a substantive liability in tort ascertained as nearly as may be by the same rules of law as would apply between subject and subject" (1965) 112 CLR, at p 300 . He accordingly concluded that the Commonwealth was vicariously liable in tort for the acts of its servants, in this instance members of the Royal Australian Navy, so long as they, if sued, would themselves have been liable; he discussed but did not resolve the question of the precise theory lying behind this vicarious liability (1965) 112 CLR, at pp 300-301 . (at p124)

13. This question of the vicarious liability of the Commonwealth for the acts of its servicemen has frequently arisen in association with the question of the circumstances in which the Crown may bring an action per quod servitium amisit when members of the armed services or policemen are injured by third parties. It is well established, despite powerful dissent, that an action per quod does not lie at the suit of the Crown in such cases. It has been contended that vicarious liability, founded on the rule respondeat superior, must go hand in hand with the availability of an action per quod, so that where the latter does not lie the former will not apply. Whereas the converse is no doubt correct, it is now clear that the unavailability to the Crown of the action per quod does not deny the application to the Crown of the rule respondeat superior and of consequent vicarious liability. In The Commonwealth v. Quince [1944] HCA 1; (1944) 68 CLR 227 , an action per quod in respect of injury to a member of the Royal Australian Air Force, Latham C.J., while concluding that the relationship between serviceman and Commonwealth was noncontractual, said that "the applicability or non-applicability of the rule respondeat superior has no relevance" to the liability of a defendant in an action per quod (1944) 68 CLR, at pp 235-236 . When Attorney-General (N.S.W.) v. Perpetual Trustee Co. Ltd. was before this Court Fullagar J. referred to what Latham C.J. had said in Quince and added that there was "no relation or correspondence whatever" between the rule respondeat superior and the action per quod (1952) 85 CLR, at p 284 . When the case went on appeal to the Judicial Committee their Lordships were of the like view and expressly approved of what had been said by Latham C.J. [1955] HCA 9; (1955) 92 CLR 113, at p 119 . (at p124)

14. It may be noted in passing that the judgment of Williams J. in Quince (1944) 68 CLR, at pp 258-259 , provides further affirmation of the vicarious liability of the Commonwealth for the acts of its servicemen: his Honour spoke of the undisputed concept in Shaw Savill that the Commonwealth would be liable in tort for any negligent navigation of its warships. (at p124)

15. The authorities to which we have referred establish both the vicarious liability of the Commonwealth in respect of the acts of members of the armed forces and also that a plaintiff may in respect of such liability recover in a suit against the Commonwealth. We need not examine that exception to the general rule of the Crown's vicarious liability which has been said to exist in the case of those officers who have some independent duty cast on them by the law; there is clearly no scope for such an exception in the present case. (at p125)

16. The central problem in the case remains: is it fatal to the plaintiff's case that both he and his fellow crewmen, against whom he alleges breaches of duty of care owed to him, were at the relevant time all serving members of the Royal Australian Air Force? (at p125)

17. There is in this case no question either of war or of war-like activities; not even of training activities conducted under conditions simulating those likely to be encountered on active service. Whatever particular reservations about the existence of any common law duty of care as between servicemen may be appropriate to such cases, they will have no application to this peacetime transport operation. The question is simply whether, as the Commonwealth contends, the fact that the plaintiff and his fellow crewmen were all servicemen is enough to exclude the existence of that duty of care which is otherwise recognized by the common law as existing between those in a proximate relationship to one another. (at p125)

18. The nature and extent of the suggested exclusion is noteworthy. As the authorities show, a duty of care conforming to ordinary common law principles is owed by servicemen to civilians. There is, therefore, no question, war-like activities always apart, of military operations in themselves attracting some general immunity; it is not the nature of the operation engaged upon but, rather, the relationship existing as between fellow servicemen engaged in the operation that is said to exclude any common law duty of care. The relationship between Crown and servicemen is said to be governed exclusively by the prerogative, as modified by statute, which, leaving no room for the common law, has exclusive operation. And it is said to govern not only matters of military discipline and organization and with it the whole range of duties and rights of servicemen in relation to their superior officers, but also to extend to all service relationships between servicemen. The nature of military service and the need for preservation of military discipline coupled with the doctrine of obedience is said to require an exclusion of such width. (at p125)

19. In considering the wide scope of this claim it is useful to recall that it is a feature of our system that military law has a quite restricted range of operation and is seen as an additional, rather than a replacement, set of rights and duties - Halsbury's Laws of England, 3rd ed., vol. 33, par. 1386. As Lord Loughborough said in Grant v. Sir Charles Gould [1792] EngR 3085; (1792) 2 H Bl 69, at pp 98-100 [1792] EngR 3085; (126 ER 434, at pp 449-450 , martial law in the all-encompassing form in which it existed in some Continental countries was unknown in England; the crimes of soldiers in England have always been amenable to the civil law and our concept of martial law is confined to the area of military discipline, the purpose of the creation of courts-martial being to have a system of courts: "invested with authority to try those who are a part of the army, in all their different descriptions of officers and soldiers; and the object of the trial is limited to breaches of military duty. Even . . . articles of war . . . are to be for the better government of "(the King's)" forces, and can extend no further than they are thought necessary to the regularity and due discipline of the army" (1792) 2 HBl, at p 100 (126 ER, at p 450) . (at p126)

20. The effect of the suggested exclusion is far-reaching. It places the serviceman outside the protection of the common law. To him alone the ordinary remedies of the law are to be denied, remedies which are otherwise extended to all within the jurisdiction of our courts, whether subject or alien, and whether free citizens or prisoners serving gaol sentences - Quinn v. Hill [1957] VicRp 60; (1957) VR 439, at pp 448-449 , per Smith J.; and see Howard v. Jarvis [1958] HCA 19; (1958) 98 CLR 177, at p 183 , Ellis v. Home Office (1953) 2 QB 135 and Hall v. Whatmore [1961] VicRp 35; (1961) VR 225 . He may not have the benefit of c. 29 of Magna Carta, justice to him can be denied by the courts; unlike the rest of the community, he is excluded from what Sir Edward Coke described as the right of every subject, that he may "for injury done to him . . . by any other subject . . . take his remedy by the course of the law and have justice and right for the injury done to him, . . ." - quoted in Blackstone's Commentaries, Bk I, 21st ed., p. 141. He will be deprived of what Lord Mansfield C.J. described in Burdett v. Abbot [1812] EngR 191; (1812) 4 Taunt 401, at pp 449-450 [1812] EngR 191; (128 ER 384, at p 403) when he said "a soldier is gifted with all the rights of other citizens . . . the mistake should be corrected which supposes that an Englishman, by taking upon him the additional character of a soldier, puts off any of the rights and duties of an Englishman". (at p126)

21. So to exclude the serviceman from reliance upon the common law might be understandable when he is engaged in operations against the enemy; questions of safety of the State may then necessitate it. But the exclusion is said to apply equally to a case such as the present, the everyday carriage by air of civilian passengers across our continent at a time of peace. It would be both understandable and no matter for judicial questioning were the exclusion the result of legislation, Parliament having provided a statutory scheme for the compensation of servicemen and having at the same time excluded recourse to the common law. Such is the case of the Crown Proceedings Act 1947, s. 10 of the United Kingdom, and of New Zealand's Crown Proceedings Act 1950, s. 9. But in this country there exists no such exclusive statutory scheme. (at p127)

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)

23. When Parker's Case came for trial before Windeyer J. the status of the deceased, whether serviceman or civilian, was in issue and, although his Honour concluded that the deceased was a civilian, he nevertheless expressed his view of what would have been the applicable law had the contrary proved to be the case. Since it is very largely upon that expression of his Honour's views, together with the authorities upon which his Honour relied, that the SolicitorGeneral now founds his submissions, it will be necessary to examine them in some detail. (at p128)

24. In Parker Windeyer J. begins by putting to one side the case of actual operations of war (1965) 112 CLR, at p 301 . His Honour, while not expressing a final opinion, stated that, as he then saw the matter "the law does not enable a serving member of any of Her Majesty's forces to recover damages from a fellow member because acts done by him in the course of his duty were negligently done. And if the negligent person is not himself liable, the Commonwealth in my opinion cannot be liable" (1965) 112 CLR, at pp 301-302 . (at p128)

25. This opinion he supports by reference first to authority and later to policy considerations. Of the former his Honour says (1965) 112 CLR, at p 302 : "The courts in England have for nearly two hundred years said, and rightly in my opinion, that to allow a member of the forces to bring an action against another member for an act done in the course of duty would be destructive of the morale, discipline and efficiency of the service, and that for that reason the common law does not give a remedy even if the conduct complained of were malicious. It is not necessary that I trace the line of well-known cases from Sutton v. Johnstone [1786] EngR 18; (1786) 1 T.R. 493 (99 E.R. 1215). and including Heddon v. Evans (1919) 35 T.L.R. 642., in which these principles have been discussed.

It will be necessary to say more of that line of cases; for the moment it may be noted that they are the very line of cases, culminating in Dawkins v. Lord Rokeby (1873) LR 8 QB 255 , which were said to establish the proposition to which, in Fraser v. Balfour (1918) 34 TLR 502 , their Lordships declined to commit themselves and which this Court also left open in Gibbons v. Duffell. His Honour goes on to say (1965) 112 CLR, at p 302 :

"The question in its broader aspect is, the House of Lords said in Fraser v. Balfour, still open, at all events before their Lordships. And I think it is still open before this Court: see Gibbons v. Duffell. But, whatever be the true position in relation to malicious injuries and defamation, my present view is that actions of negligence are not maintainable by a member of the forces against a fellow member, whether commander, comrade or shipmate, in respect of acts done by him in the course of duty."

His Honour then turns to policy considerations. (at p129)

26. As we understand Fraser v. Balfour, and for that matter Gibbons v. Duffell [1932] HCA 26; (1932) 47 CLR 520 , what their Lordships were not prepared to affirm on the material before them and what this Court did not affirm was the very proposition described by Windeyer J. as having been the law of England for nearly two hundred years. That was the proposition which the Court of Exchequer Chamber had stated in Dawkins v. Lord Rokeby (1873) LR 8 QB 255, at p 271 , when it confined to military tribunals all "questions of military discipline and military duty alone", the proposition from which the House of Lords withheld its imprimatur, describing it as involving "constitutional questions of the utmost gravity" (1918) 87 LJKB 1116, at p 1118 . It is significant that their Lordships acted as they did in a case which in its facts was narrowly confined to matters of military discipline, just as had been the line of cases culminating in Dawkins v. Lord Rokeby. If on facts in pari materia those cases were not to be regarded as settling the law, still less should they be so regarded in the very different circumstances of this case. In other words, if the areas of malicious injury and defamation were said by their Lordships to be still open for definitive decision the position must be a fortiori in regard to the wider area concerning which Windeyer J. made his observations in Parker's Case and which is the concern of the present case. (at p129)

27. There are, we think, two things to be said of the state of the authorities: not only have they, on the particular question there in issue, been held both in the House of Lords and in this Court not to be decisive of the point. They also prove, on examination, to be, in any event, concerned with matters remote from what is in issue in the present case and was in issue in the discussion of the matter by Windeyer J. in Parker's Case, namely a serviceman's right to have recourse to the common law in respect of the negligent conduct of a fellow serviceman. (at p130)

28. The line of authorities to which Windeyer J. referred, beginning with Sutton v. Johnstone, were exclusively concerned with a quite distinct question, whether or not matters in one way or another the concern of military discipline and military law, may be made the occasion for litigation in the courts. (at p130)

29. In Sutton v. Johnstone [1786] EngR 18; (1786) 1 TR 493 (99 ER 1215) the captain of a naval vessel against whom disciplinary proceedings had been taken sued his squadron commander for malicious prosecution and false imprisonment. The defendant unsuccessfully contended before the Court of Exchequer that no such action would lie by a subordinate officer against his superior for acts done intra vires in the course of discipline, drawing on the analogy of the immunity accorded to judges and jurors (1786) 1 TR, at p 503 (99 ER, at p 1221) . However, in the Exchequer Chamber Lord Mansfield and Lord Loughborough, while acknowledging that there was no applicable authority and that the question was doubtful (1786) 1 TR, at p 550 (99 ER, at p 1246) - concluded that the courts could not entertain actions for malicious prosecution and false imprisonment brought by subordinate officers against their superiors. To do so, they reasoned, would impair naval discipline; moreover a naval officer unjustly accused and court-martialled had his remedy before the court martial: it would acquit him if the accusation were unjust. Sutton v. Johnstone thus recognized the separateness of the system of military discipline and treated courts-martial, acting within power, as the appropriate and indeed exclusive forums for the resolution of matters of military discipline. (at p130)

30. Dawkins v. Lord Paulet (1869) LR 5 QB 94 and Dawkins v. Lord Rokeby (1873) LR 8 QB 255 were actions for libel brought by an army officer against his superior officer each concerning allegedly defamatory statements made in military reports or at courts-martial. In the first Lord Paulet, in duty bound to forward to the Adjutant-General the plaintiff's complaints concerning military matters, accompanied them with his own comments, which were adverse to the plaintiff. The majority in the Queen's Bench held that an allegation of malice would be no answer to the defendant's claim of privilege. Mellor J. held that, it being part of the military duty of the defendant to do what he did, no action would lie against him "for maliciously doing his duty" (1869) LR 5 QB, at p 114 ; the defendant wrote what he did "in the performance of a positive duty, and for the purpose of obtaining an investigation of the matters therein alleged by a competent military tribunal" (1869) LR 5 QB, at p 116 . Moreover the defendant's adverse comments upon the plaintiff were "matters simply relating to military duties and discipline, and to the administration of the army" for which the mutiny act and articles of war provided an exclusive remedy and an exclusive forum, the courts-martial (1869) LR 5 QB, at pp 117-118 . Lush J. likewise stressed the effect of the articles of war and the provision they made for the redress of wrongs (1869) LR 5 QB, at pp 121-122 . Cockburn C.J. was in dissent and it is for his dissenting judgment that members of this Court expressed a preference in Gibbons v. Duffell [1932] HCA 26; (1932) 47 CLR 520 . (at p131)

31. In Dawkins v. Lord Rokeby both Blackburn J. and, on appeal, a bench of ten judges in the Exchequer Chamber, held that no civil action lay for defamation in respect of evidence given before a courtmartial, regardless of the existence of malice. It was a tribunal established according to law and its proceedings, including testimony before it, were the subject of absolute privilege. This case has recently been extensively relied upon for this proposition by their Lordships in Trapp v. Mackie (1979) 1 WLR 377; (1979) 1 All ER 489 . However Kelly C.B., speaking for the Court, also took "another and a higher ground", namely that the whole question involved in the case was "a military question, to be determined, as we think, by a military tribunal, and not cognizable in a court of law. The attendance of the defendant as a witness, the duty to give evidence when called upon, the validity of the order to hold a court of inquiry, the effect of the evidence upon the military character and upon the military rights and liabilities of the plaintiff, and indeed of the defendant likewise, are purely questions of a military nature" (1873) LR 8 QB, at pp 270-271 . The Court of Exchequer Chamber concluded, on authorities which included Sutton v. Johnstone and Dawkins v. Lord Paulet, that such questions "of a military character ... involving questions of military discipline and military duty alone are cognisable only by a military tribunal, and not by a court of law" (1873) LR,8 QB,at p 271 . It was upon these propositions that in Fraser v. Balfour (1918) 87 LJ QB 1116 their Lordships expressly refused to rule. (at p131)

32. The Solicitor-General has drawn our attention to other cases said to form part of the same line of authority. Of the first of these, Keighly v. Bell [1866] EngR 9; (1866) 4 F & F 763 (176 ER 781) , it is enough to say that it was another case of proceedings by an Army officer against his commanding officer for (inter alia) false imprisonment and malicious prosecution. Wills J. held that, in the absence of evidence that the commanding officer's actions in discharge of his military duty were other than in the ordinary discharge of that duty, he would not be liable to the plaintiff unless the orders upon which he acted were obviously illegal (1866) 4 F & F, at p 801 (176 ER, at p 798); (1866) 4 F & F, at p 805 (176 E.R., at p. 800). . In Marks v. Frogley (1898) 1 QB 888 a member of a volunteer corps sued three of his fellow volunteers for assault and false imprisonment when, in obedience to orders, they had acted as his guard in conveying him to the police on suspicion of theft. The Court of Appeal held that his exclusive remedy was for redress of wrongs under a provision of the Army Act. As Chitty L.J. said "The grievances of which the plaintiff complains are grievances suffered by him when subject to military law at the hands of persons also subject to military law in execution of their military duty" (1898) 1 QB, at p 905 . (at p132)

33. The third, Mitchell v. The Queen (1896) 1 QB 121 , concerned a complaint of alleged underpayment of amounts said to be due to the plaintiff on his retirement from the Army. He sought, by way of petition of right, to recover these underpayments from the Crown, but failed since, as Fry L.J. said (1896) 1 QB, at p 123 , "no engagement between the Crown and any of its military or naval officers in respect of services either present, past, or future can be enforced in any court of law". Lord Esher M.R. also spoke of the voluntary nature of such engagements on the Crown's part and of the resultant inability of an officer to obtain redress of grievances as against the Crown by means of proceedings in the Courts (91). This case appears to be remote from the present discussion. (at p132)

34. There are other cases, the earlier of the two cases of Dawkins v. Lord Rokeby [1866] EngR 5; (1866) 4 F & F 806 (176 ER 800) among them, which form part of this general line of authority. They would of themselves appear to add nothing of significance. It remains only to mention Heddon v. Evans (94), to which Windeyer J. referred. It too was a case in which the plaintiff's alleged injuries were "exclusively associated with the purported administration of military discipline by the defendant" (1919) 35 TLR 642 . McCardie J. disposed of the defendant's submission that the civil courts "could not inquire at all into the exercise of military discipline" by concluding that it went too far to say that by becoming a serviceman a man had "lost any right whatever to appeal to the civil Courts in respect of any wrongs arising in the course of military discipline". A serviceman must accept the Army Act and Rules and Regulations and Orders and all that they involved but "save to that extent, neither his liberty nor his person or property might be lawfully infringed" (1919) 35 TLR, at p 643 . Army discipline would not suffer in consequence. This decision, albeit restricted to the narrow field of military discipline, shows a clear refusal wholly to exclude even that field from the reach of the courts of law. (at p133)

35. What emerges from all these cases, whatever authority they may be thought to have in the light of Fraser v. Balfour (1918) 87 LJ QB 1116 and Gibbons v. Duffell [1932] HCA 26; (1932) 47 CLR 520 , is that they are exclusively concerned with matters of military organization and discipline. There having been created an elaborate system of military law and military discipline, the courts of law have been unwilling to entertain actions by members of the armed forces who find themselves aggrieved by what has occurred within that system. They have nothing to say about the general liability of the Crown to servicemen for the acts of fellow servicemen; they accordingly constitute no authority on the facts of the present case. (at p133)

36. Authority apart, Windeyer J. relied upon certain policy considerations, which were also urged in the present case. His Honour referred to the effect upon "the morale, discipline and efficiency of the service" should a serviceman be free to sue a fellow member of the armed services for an act done in the course of duty (1965) 112 CLR, at p 302 . The present case is concerned with routine duties in time of peace, not involving conduct in response to a specific order of a superior officer. In such a case we see no policy considerations which require that this Court by its decision should deprive this serviceman of the rights at common law which protect all other members of the community. Unlikely as it may be that knowledge of the remote possibility of civil liability may operate as a stimulus to greater care, so much the better for the efficient functioning of the armed forces if it does. (at p133)

37. The consciousness of the obligation to take care will scarcely be likely to deter servicemen from acting with all due despatch and decisiveness in the performance of their duty. Only if they fear that the Commonwealth will not stand behind them and indemnify them in the unlikely event that they, rather than the Commonwealth, are sued, will they be at all likely to be deterred, and this rests very much in the hands of the Commonwealth; should it choose to deny indemnification it will be its repudiation of responsibility rather than the law's imposition of liability upon the serviceman that may affect morale. (at p134)

38. Consequences affecting morale and discipline are perhaps more readily discernible in those cases in which the source of liability for the plaintiff's injury is to be found in the giving of a negligent order. The dictates of military law and discipline may require a serviceman to execute the command of a superior officer, even though it be negligently given in the sense that its execution entails a foreseeable risk of injury to other servicemen. It may seem unfair that the subordinate should be exposed to liability if he is bound to execute the order. Yet it is not unfair to regard the superior officer who gives the order as the principal actor and to base the Commonwealth's vicarious liability in such a situation on the giving of the negligent order. Of course we do not need to resolve this problem in the present case. (at p134)

39. Nor do we have occasion to consider the position of servicemen engaged in combatant activities in time of war or in training for such activities. It would not be wise, in the abstract, to attempt to mark out whatever line may be thought to exist between one act of military duty and another. Public policy may require that, at some point in the continuum from civilian-like duties performed by servicemen in peacetime to active service in wartime, what would otherwise involve actionable negligence should not give rise to a cause of action. If so, the definition of liability would seem to be pre-eminently a case for legislation, preceded by evaluation and report by law reform agencies. (at p134)

40. We would answer the question in the stated case "Yes". (at p134)

MURPHY J. In the course of unwarlike operations by the Royal Australian Air Force (transport of a Minister and other civilians on a "V.I.P." flight) a member of the airforce negligently failed to properly insert the locking pins in the ladder used for the descent of passengers from the aircraft. The ladder collapsed causing severe injury to the plaintiff airforce officer. The question is whether the Commonwealth is vicariously liable for the negligence of the serviceman. There is no statutory provision in the relevant federal legislation (the principal Act is the Defence Act 1903 (Cth)). The decision either way amounts to recognition (that is, adoption) by the Court of a federal common law rule. (at p134)

2. Common law is decisional or judge-made law. It is that part of the law progressively created and adapted by judges to ensure a coherent system of law capable of providing answers to every legal question, and thus enabling the judicial system to discharge its function of settling disputes. Leaving aside constitutional law (where many constitutional controversies concern the elaboration of this common law element which accompanies the express and implied provisions of the Constitution) common law may be divided into two kinds. One is the body of rules developed in the areas which have been left entirely or largely to the judges by the legislatures, which may be described as general common law. Most aspects of contract and tort law are of this kind. Another kind ("the common law of statutes") consists of the rules which surround Acts of Parliament and fill their interstices; they complete the statutory patterns outlined by the Parliament or State Parliaments; they are evolved to make Acts operate efficiently, and without them most Acts would be unworkable because of " . . . the recognised futility of attempting all-complete statutory codes . . ." (D'Oench, Duhme & Co., Inc. v. Federal Deposit Insurance Corporation [1942] USSC 62; (1942) 315 US 447, at p 470 (86 Law Ed, 956 at p 969) ). The distinction between judicial interpretation of an Act and the common law accretion is often blurred and generally of no practical importance. Examples of this blurring are the natural justice rules concerning exercise of statutory powers and the rules giving a right to sue for breach of statutory duty. (at p135)

3. In Australia both these kinds of common law are part of the laws of the States. At the federal level, the question whether there is any federal general common law (that is the first kind) is debatable (see R. v. Kidman [1915] HCA 58; (1915) 20 CLR 425 ). The High Court, as the federal Supreme Court, in its role as appellate court in matters of federal as well as state law, by its practice of declaring uniformly the common law in both spheres, has sharply distinguished Australia from the United States of America (where it has been held that there is no federal general common law (Erie Railroad Co. v. Tomkins [1938] USSC 94; (1938) 304 US 64, at p 78 (82 Law Ed 1188, at p 1194) ) and appears to have evolved a federal general common law, indeed a general Australian common law applicable uniformly in federal and state areas except to the extent that it has been superseded by Acts or State Acts. But undoubtedly in Australia as well as in the United States (see Hinderlider v. La Plata Co. [1938] USSC 98; (1938) 304 US 92 (82 Law Ed 1202) ) there is federal common law surrounding federal Acts (that is the second kind). I have drawn attention to this in a number of cases. (See Australian Broadcasting Commission v. Industrial Court (S.A.) [1977] HCA 51; (1977) 138 CLR 399, at pp 417-422 ; Taylor v. Taylor [1979] HCA 38; (1979) 143 CLR 1, at p 21 .) (at p135)

4. In many cases concerning federal Acts much time is wasted because of a failure to recognize the theoretical basis for the courts' application of , or rejection of, some rule applicable in other areas of law. The real inquiry should be what is appropriate as a common law rule as an adjunct to the statutory scheme rather than what is the nature and extent of similar common law rules accessory to quite different State or foreign Acts. (at p136)

5. The Court has previously recognized a federal common law rule that the Commonwealth is vicariously liable for the negligence of a serviceperson causing injury to a non-serviceperson. (See Shaw Savill & Albion Co. Ltd. v. The Commonwealth [1940] HCA 40; (1940) 66 CLR 344 ; Attorney-General (N.S.W.) v. Perpetual Trustee Co. Ltd. [1952] HCA 2; (1952) 85 CLR 237 ). The Judiciary Act 1903, s. 64 which assimilates the rights of the parties in any suit to which the Commonwealth is a party "as nearly as possible" to those in a suit between subject and subject (see Maguire v. Simpson [1977] HCA 63; (1977) 139 CLR 362 ) does not seem applicable here because it is not possible to assimilate the position of the Commonwealth in conducting a military force to that of a subject (see Attorney-General (N.S.W.) v. Perpetual Trustee Co. Ltd.). (at p136)

6. Leaving aside warlike operations (including training and manoeuvres) the reasons for recognizing a rule of vicarious liability on the part of the Commonwealth for injury to one serviceperson by negligence of another outweigh those against. Servicepersons are not outlaws. Unless military necessity dictates otherwise, they should be entitled to the same rights as other persons. The suggestion that military discipline would be adversely affected by the adoption of such a rule is unpersuasive. If providing a remedy for negligence in unwarlike operations (at least apart from compliance with a specific order) would tend to create dissension undermining morale and efficiency, this can be met by the Commonwealth indemnifying negligent servicepersons. As Starke J. pointed out, this was done in the United Kingdom by general Acts of Indemnity (10 & 11 Geo. V c. 48) (Shaw Savill and Albion Co. Ltd. v. The Commonwealth (1940) 66 CLR, at p 357 ). As a corollary to the adoption of the rule allowing recovery, in the absence of statutory indemnity, another federal common law rule should be adopted - that the Commonwealth is under an obligation to indemnify the serviceperson for whose actions it is vicariously liable. There is no need now to consider possible exceptions such as where there is malicious conduct. Such a corollary is desirable if one adopts a rule of vicarious liability in the Commonwealth based on liability of a negligent serviceperson either to a serviceperson or a nonserviceperson. (at p137)

7. To allow an action in negligence or other tort by the Commonwealth, founded on vicarious liability for its serviceperson's negli gence, by a non-serviceperson but not by a serviceperson, would be to recognize in this area a parallel to the thoroughly discredited doctrine that an employee could not sue an employer for injury caused by negligence of a fellow employee. (at p137)

BRENNAN J. I wish to add but two observations to the joint judgment of my brothers Stephen, Mason, Aickin and Wilson which I have had the advantage of reading. I concur in the answer proposed to the question in the stated case and in the reasons given, and I add these observations out of deference to the concern expressed by Windeyer J. in Parker v. The Commonwealth [1965] HCA 12; (1965) 112 CLR 295, at p 302 that the morale, discipline and efficiency of the armed forces would be destroyed if a member of the forces were entitled to bring an action against another member for an act done in the course of duty. (at p137)

2. First, the application of the rules of common law to servicemen in their relations one with another may well be beneficial to the morale of the armed services. Would morale be maintained or improved by a rule that a member of the forces can have no remedy for his ill-use by another member in times of peace? Morale might be eroded if members of the forces were required to suffer civil wrongs done to them by other members of the forces in the course of duty without effective remedy. The course of duty includes much more than what is done or omitted in execution of lawful commands. (at p137)

3. Second, the existence of a general duty of care does not impair the duty of obedience to lawful commands. The dictates of military law require a serviceman to execute the lawful command of a superior officer (Naval Discipline Act 1957 (U.K.), s. 12(a); Army Act (U.K.), s. 9(2); Australian Military Regulation 203(1)(xiv); Air Force Act (U.K.) s. 9(2); Air Force Regulation 226(h); and see The Commonwealth v. Quince [1944] HCA 1; (1944) 68 CLR 227, at p 254 ). An act which is done or an omission which is made in exact execution of the lawful command of a superior officer is authorized by law: Keighly v. Bell (1866) 4 F & F 763, at p 805 [1866] EngR 9; (176 ER 781, at p 800) . It would be anomalous if the exact discharge of a serviceman's duty were to expose him to a civil liability, and there is no reason to suppose that it does so. What statute requires to be done cannot be made the foundation of an action in tort. In the present case, however, there is no suggestion that the failure to fit the locking pins in place was an omission done in exact execution of a command. (at p138)

4. A defence of authorization is not necessarily available to a superior officer who negligently gives an order, that is, who gives an order the execution of which will entail a foreseeable risk of injury to others. However, an examination of the liability in negligence of a person giving an order and of the vicarious liability of the Commonwealth for his negligence is not required by the circumstances of the present case. (at p138)

5. The question in the special case should be answered "Yes". (at p138)

Order that the question asked by the case stated be answered as follows:

Whether in the circumstances agreed and alleged an action in negligence is maintainable by the plaintiff against the Commonwealth of Australia arising out of the negligent acts or omissions of a fellow member of the Armed Services whilst on duty.

Order that the plaintiff's costs of and incidental to the case stated be paid by the Commonwealth.