HIGH COURT OF AUSTRALIA

                                             Attorney-General (NSW)

                                                           Vs.

                                            Perpetual Trustee Co (Ltd)

             (Dixon(1), McTiernan(2), Williams(3), Webb(4), Fullagar(5) and Kitto (6) JJ.)

                                                    3 March 1952

CATCHWORDS

Master and Servant - Action per quod servitium amisit - Injury to member of police force - Crown -
Relation between Crown and its servants - Number of police force - Nature of action - Damages -
Police Regulation Act 1899-1947 (N.S.W.) (No. 20 of 1899 - No. 19 of 1947), ss. 4, 6, 9, 10, 12, 14
- Police Regulation (Superannuation) Act 1906-1944 (N.S.W.) (No. 28 of 1906 - No. 1 of 1944) -
Industrial Arbitration Act 1940-1951 (N.S.W.) (No. 2 of 1940 - No. 10 of 1951) - Crown
Employees Appeal Board Act 1944 (N.S.W.) (No. 15 of 1944).

HEARING

Sydney, 1951, July 25, 26.Melbourne, 1952, March 3. 3:3:1952APPEAL from the Supreme Court
of New South Wales.

DECISION

March 5, 1952.The following written judgments were delivered: -

DIXON J.

1. By the order under appeal the Supreme Court of New South Wales entered judgment for the
defendants. (at p242)

2. The cause of action set up by the information is for the loss of the services of a member of the
police force of New South Wales owing to physical injuries sustained by him in consequence of the
negligent management of a motor vehicle for which negligence the defendants were responsible.
The pleading contains an allegation that the member of the police force was discharged by reason of
disablement caused by such injuries and it alleges facts directed to show that up to his discharge it
was incumbent upon the Crown to pay him the salary and allowances appropriate to his office and
upon his discharge to pay him a pension which otherwise would not have commenced at so early a
date. The claim of the Attorney-General on behalf of the Crown is to recover the salary and
allowances so paid and to be reimbursed in respect both of the moneys already paid and of the
moneys which will hereafter be paid to him, and the information concludes with a claim to a money
sum. The basis of the information is a cause of action per quod servitium amisit and in such a cause
of action, whether framed in trespass or in case, the damages have always been unliquidated. The
payments made, and to be made, to the injured man may or may not afford a proper measure of
damages. According to Bradford Corporation v. Webster (1920) 2 KB 135 ; Attorney-General v.
Valle-Jones (1935) 2 KB 209 ; Attorney-General v. Dublin United Tramways Co. (1896) Ltd (1939)
IR 590 and R. v. Richardson (1948) SCR (Can) 57 the salary and allowances do form a measure of
damages and the actual and prospective payments of pension are relevant to the assessment of
damages. But according to the dictum at the end of Lord Sumner's opinion in Admiralty
Commissioners v. S.S. Amerika (1917) AC, at p 61 none of these payments would enter into the
measure of damages and according to a dictum of Lord Parker in the same case (1917) AC, at p 42
the payments on account of pension would not do so. If Lord Sumner's opinion is right it may be a
question whether the information sufficiently alleges damage legally resulting from the loss of the
injured policeman's services to sustain the pleading, if otherwise it discloses a cause of action. But it
was not upon this point that the demurrer was argued. Moreover for the purpose of answering a
general demurrer enough may perhaps be extracted from the information to supply the necessary
allegation that the loss of his services involved damage, even if it were held that none of the specific
expenditure alleged ought in law to be considered part of the damage. I shall therefore confine my
decision to the point that was relied upon in support of the demurred namely that the loss of the
services of a member of the police force owing to his disablement caused by a wrongful act does not
give the Crown a cause of action against the tort feasor. (at p243)

3. Unless we are to reconsider what the majority of the Court decided in The Commonwealth v.
Quince [1944] HCA 1; (1944) 68 CLR 227 that case in my opinion requires us to hold that the
Crown is not entitled to such a cause of action. No doubt the relation of a member of the armed
services to the Crown is not the same as that of a member of the police force of New South Wales to
the Crown. But the reasoning upon which the judgments of the majority of the Court depend, in
spite of some variation, appears to me to apply to the case of a member of the police force. It is true
that Starke J. (1944) 68 CLR, at pp 245, 246 places some stress on the national duty of military
service and also that his Honour confines his decision to members of the defence forces. But the
distinctions between the military service of the Crown and service in a police force do not seem
sufficiently relevant to the want of that correspondence with the relation of master and servant
which his Honour considered to be lacking to warrant an opposite conclusion in the case of the
police force. (at p243)

4. In my opinion we ought to follow and apply the decision in The Commonwealth v. Quince [1944]
HCA 1; (1944) 68 CLR 227 . This Court has adopted no very definite rule as to the circumstances in
which it will reconsider an earlier decision. Certainly the rigid rule accepted in the Court of Appeal
in Young v. Bristol Aeroplane Co. Ltd. (1944) KB 718 is incompatible with the practice of the
Court and is inappropriate. The attention paid in this jurisdiction to developments in English case
law would be enough to make the rule inappropriate, even if the history of constitutional
interpretation did not show it to be so and even if, subject to the prerogative, this were not a court of
final resort. In any case it may be permitted to doubt the wisdom or justice of the rule: cf. Williams
v. Glasbrook Brothers, Ltd. (1947) 2 All ER 884 following Wilds v. Amalgamated Anthracite
Collieries Ltd. (1947) 1 All ER 551 , then challenged and subsequently reversed in Dom. Proc.
(1948) 2 All ER 252 . (at p244)

5. But there appears to me to be no ground for reconsidering the decision in Quince's Case [1944]
HCA 1; (1944) 68 CLR 227 unless it be a sufficient ground simply that the opposite conclusion is to
be preferred. It is evident that the decision was reached only after a very full examination of the
question. It cannot be said that any compelling consideration or important authority was overlooked
or that the decision conflicts with well established principle or fails to go with a definite stream of
authority. It is a recent and well considered decision upon what is evidently a highly disputable
question. The question stands by itself. The decision does not affect some wider field of law so that
its importance goes beyond the matter in hand. (at p244)

6. In my opinion the proper course to take is simply to follow the decision and apply it. Accordingly
I think that the appeal should be dismissed. (at p244)

7. Had the matter been res integra I would for myself have adopted the view that an action does lie
at the suit of the Crown for damage suffered by reason of the loss of the services of a Crown servant
caused by a wrongful act and that the services of a member of the police force of New South Wales
are of a description falling within the principle. I state my opinion only because separate judgments
are to be delivered in which the question is examined anew. (at p244)

8. My reason for preferring the view in favour of the Crown's right of action is simply that the
grounds upon which the services to the Crown of a soldier or a policeman or an employee in its civil
service are distinguished from the services for the loss of which an employer who is a subject of the
Crown may complain do not appear to me to be relevant to the cause of action, either in point of
historical development or in point of principle as at present understood and applied. (at p244)

9. It is better to go first to the historical origin of the cause of action and the relation of the Crown to
the forms of action involved. It is better to do so because it may at first sight seem a striking
consideration that before the twentieth century no precedent has been found for the Crown's suing
for the loss of services. (at p245)

10. From early times trespass could be brought by a master for a battery of his servant whereby the
master lost his services. Trespass lay at the suit of a master also for a forcible taking of his servant.
This was the law before the Statute of Labourers (23 Ed. III.) as Coleridge J. showed in his
judgment in Lumley v. Gye (1853) 2 E1 & B1 216 [1853] EngR 15; (118 ER 749) . Actions on the
case for enticement were based on that statute. In trespass by a master for the battery of his servant
it was necessary to allege that thereby the plaintiff lost the services of his servant. In such a case
"the master might recover for the services and the servant for the battery" Brooke's Abrid. Vol. II.
fo. 292. Trespass pl. 442 abridging Y.B. 20 H. 7 pl. 5. (at p245)

11. In Y. B. 19 H. VI. pl. 94 (fo. 45) there occurs a statement of what the law is "where my servant
is beaten", viz.: "he shall have a good action of trespass and recover damages and I another action of
trespass and recover damages: and yet it is only the same trespass, but the trespass is done as well to
the one as to the other: and here the master recovers his damages for the loss of the services, and the
servant for the damage done to his person: and so damages are recovered twice for one and the same
trespass diversis respectibus. And that is adjudged anno 11 Rich. 2 II in a writ of trespass". But the
master's right to recover for the services did not depend upon a retainer of the servant. "Trespass for
beating his servant per quod servitium amisit lies although he was not retained but served only at
will: 11 H. 4. 2. per Hull accordant". Fitzh. N. B. p. 200. "Trespass for a servant beaten, the plaintiff
need not allege a retainer for where a man serves me at his pleasure and he is beaten by which I lose
his services trespass lies for me, quod nota": Brooke's Abrid. Vol. II. fo. 283 Trespass pl. 157
abridging Y. B. 22 H. 6 fo. 43, Hilary Term pl. 25. This has remained the law, notwithstanding
occasional dicta as to the need of a contract to continue serving. The judgment of Willes J. in Evans
v. Walton (1867) LR 2 CP 615, at pp 621, 622 makes this clear. His Lordship refers to the plea from
22 H. 6 abstracted by Brooke. In an action on the case for harbouring a servant who has broken the
relation of service a retainer must be shown and this may be necessary too in an action for enticing
him from the service. See Jenk's Digest of English Civil Law par. 976, and notes. But clearly a
master could recover in trespass for the loss of services without making out any contractual right to
them. ". . . it does not matter as regards the master's right to sue, how the injury is caused to the
person of his servant, whether by an assault, by battery, by negligence or otherwise. The loss of
service is, on the other hand, essential, but a service, de facto, is enough to support the action":
Dicey on Parties in an Action (1870), p. 326. This rule formed the basis of the action for seduction.
If the injury to the servant was committed with force but is the consequence of negligence and was
not intended as, for instance, if he is run down in the street, the master might sue in trespass for the
forcible wrong or in case for the negligence. See Williams v. Holland (1833) 10 Bing 112 (131 ER
848) and 2 Saunders Pleading p. 653. In each form of action the master's right was to recover for the
loss of services, not for the loss of the performance of a contract of service. During the greater part
of the development of English law these rules were regarded from the point of view of the remedy.
They determined the scope of the remedy and the conditions in which it lay. Bearing that in mind it
is necessary now to turn to the history of the Crown's right to the remedies. (at p246)

12. The common law was that the King might resort to any remedy available to the subject. Writing
of quare impedit, Fitzherbert, Natura Brevium p. 32 F. says "for the King may sue this writ and
every writ in what Court he will". And elsewhere in the Natura Brevium he writes (p. 7 B) "For the
King hath a Prerogative in this matter before others to sue in what Court he will; but he cannot alter
or change the nature of the writ, otherwise than the Law giveth the same to him and others". And
under Trespass p. 90 I "And the King shall have an action of Trespass for taking his goods and the
writ is such: 'Wherefore with Force and Arms our goods and chattels to the value of &c. and other
injuries there committed, in contempt and to the great damage of us and against our Peace'".
Instances of the King suing in trespass occur in the abridgements; see Brooke Vol. II Fo. 283
Trespass pl. 172 Fo. 142 Prerog. le Roy pl. 29 ("Trans. pro rege"); Comyns Dig. citing Y. B. 4 H. V.
4 b. 10 H. IV. 3 and Theloall's Digest of Briefs Original L. 1 C. 3 f. 19. I have not seen any actual
reference to a writ of trespass brought by the King for the loss of services. But the King possessed
many menial and other servants and it is difficult to suppose that if the services of any of these were
lost through his being beaten the King might not have brought trespass per quod servitium amisit if
he had chosen, just as he might bring trespass de bonis asportatis or trespass quare clausum fregit.
Violence to the King's servants and violence to the King's officers would naturally be considered to
call for much stronger measures than a writ of trespass. Accordingly it is not surprising if the Year
Books do not contain an actual instance of trespass per quod servitium amisit brought by the King.
The Liber Assissarum does, however, contain a plea of trespass which is close enough to show that
no difficulty would have been felt in the King bringing a writ of trespass per quod servitium amisit.
It is 27 Ass. pl. 49 and is abridged by Brooke under Joinder en Action Vol. II. fo. 31 pl. 57 and
under Prerogative le Roy Vol. II. fo. 141 pl. 48 and is referred to in the Case of Mines (1613) 1
Plow 310, at p 323 (75 ER 472, at p 491) . The case depended on two propositions which are to be
found in Co. Lit. at 135b and 137b respectively thus: - "If a Villeine be made a secular chaplaine,
yet his lord may seise him as his Villeine and seise his goods &c." "If a villeine be a priest in the
King's Chapel, the lord cannot seise him in the presence of the King for the King's presence is a
privilege and protection for him". The material part of pl. 49 of 27 Ass. describes the proceeding
thus: "Trespass brought by the King and by a priest, and pleaded that he was a priest (chaplain) of
the King of his chapel of Westminister and was in the protection of the King, alleging the trespass to
be done to him within the Palace of Westminister in the presence of the King and of his Justices and
in contempt of the King and in contravention of his protection to the damage of the plaintiff". The
defendant's plea, which apparently did not take the form of a justification, set up the Villenage of
the chaplain and a right to the manor of which he was Villein, a plea which failed "because a man
may not take his Villein in the presence of the King". Even if this chaplain sued for the King qui
tam (a matter as to which see Bro. Abr. joinder en action pl. 57 and Wms. Saunders Vol. 1 p. 136
note (1) ) the case none the less shows a cause of action in the King. Clearly enough a chaplain
might be a servant, although he might not fall within the Statute of Labourers, a question discussed
by Coleridge J. in Lumley v. Gye (1853) 2 E1 & B1, at pp 262-266 (118 ER, at pp 766, 767) , cf.
Holdsworth H. History of English Law, vol. 2, p. 461, note 3. The case places the relation of the
chaplain to the King, by whose protection he was enveloped, in antithesis to his status of Villenage.
Evidently why trespass lay for the King is that what may be called his sphere of personal control
had been invaded by the seizing of his chaplain who lay within it. It is because a forcible
deprivation of the services of his servant amounts to a similar invasion of a master's sphere of
control that he might bring trespass, not because of the personal status of the servant. (at p248)

13. There is no reason to suppose that the action per quod servitium amisit would lie only for the
loss of the services of persons of low degree. In the historical development of the actions per quod
servitium amisit there has not been any limitation upon the class of services for the loss of which a
private employer may sue. All that is required is that the relation of master and servant shall exist. A
modern trading company whose general manager is disabled through the negligence of a stranger
may sue him for the loss of the manager's services in the same way as the company might have sued
had the injured man been an artisan in its employment. The remedy has followed the relation of
master and servant unaffected by the changes that have taken place in the social and economic
purposes for which the relation has been used. Nor has the essential character of the cause of action
been influenced by the fluctuating changes over the centuries in the extent to which the terms and
conditions of the employment are left to free contract. To compare the medieval conditions or
conceptions in which the remedy of trespass per quod servitium amisit arose with those affecting the
service of the Crown at the present time and to regard the very great difference as bearing upon the
question whether the remedy belongs to the Crown for loss of the services of a soldier or policeman
or a public servant appears to me to be a mistaken form of reasoning. The comparison should be
between the relation to the Crown of its servants from time to time and the corresponding relation at
the same respective times of a servant to a master who is a subject. I venture to think that if this
form of comparison is made it will be found that at no stage in the long course of legal development
the law has undergone did the relevant attributes of the relation between the servants of the Crown
and the Crown so differ from those of the relation between the servants of a subject and their master
as to take a loss of services by the Crown in consequence of a wrongful injury to its servant outside
the scope of the remedy of trespass or of case or the modern equivalent but innominate cause of
action accorded to a subject sustaining a loss of services by such a wrongful injury to his servant. (at
p248)

14. No doubt, at all times there have been offices under the Crown whose occupants serve the
Crown but do not stand in the relation of a servant to his master. In former times many offices of
profit existed, some of freehold, the holders of which exercised rights and performed duties of an
independent character. In modern times there are many public offices existing under statute and
sometimes charter the occupants of which discharge functions belonging to them by law. (at p249)

15. But there always have been employments under the Crown where the command and direction of
the Crown given mediately or immediately is the sole measure of the duty of the servant. Where the
right of control exists in the Crown and extends to the manner in which the employment is carried
out, that is, to the doing of the work, the test of the relation of master and servant is satisfied. Why
should it be supposed that where a relation exists which is typically that of master and servant the
fact that the Crown is the employer places it in a different category? The Crown in right of New
South Wales and in right of the Commonwealth may be sued in tort. 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 p249)

16. It does not appear to me to matter that constitutionally the Sovereign must act through Ministers
and does not give commands personally to the servants of the Crown. We are concerned here with
the liability of the Crown considered as the executive government of the state and what is in
question is whether the relation between executive government of the state and the member of the
police force is that of master and servant. The growth of ministerial responsibility for the acts of the
Crown has not changed the character of the legal relation to the Crown of the servants of the Crown.
Again the question being whether employment by the Crown as the government of the country
involves the relation of master and servant so that the Crown may sue for loss of services, I cannot
see how the governmental character of the master or the public purpose of or interest in the service
of the servant is relevant. I presume that the Railway Commissioner (as to which see Victorian
Railway Commissioners v. Herbert (1949) VLR 211 ) may maintain the action in respect of the
services of for example a fireman or porter; that the Rural Bank (with the position of which we dealt
in Rural Bank of New South Wales v. Hayes [1951] HCA 58; (1951) 84 CLR 140 ) may sue for the
loss of the services of a clerk, and that the Grain Elevators Board (with which we dealt in the case
of Grain Elevators Board (Vict.) v. Dunmunkle Corporation (1946) 73 CLR 70 ) may sue in respect
of the loss of the services of a mechanic. (at p249)

17. Of course there may be a question whether an officer does hold an office with independent
functions or stands in the relation of an ordinary servant of the Crown. But it does not follow that
because in some duties the law invests him with an independent responsibility he is not otherwise a
mere servant of the Crown. For example a collector of customs discharges an independent function
in passing or refusing to pass an entry and if he acts wrongfully in that respect the Crown is not
vicariously responsible (Baume v. The Commonwealth [1906] HCA 92; (1906) 4 CLR 97 ).
Nevertheless we have regarded him as a servant for whose libels the Crown was responsible in
damages (Musgrave v. The Commonwealth [1936] HCA 80; (1937) 57 CLR 514, at p 548 ). (at
p250)

18. Quince's Case [1944] HCA 1; (1944) 68 CLR 227 related to a member of the armed services. If
there is any example of the duty of implicit obedience in all things great or small, it is that of the
soldier or naval rating, and the aircraftsman is under the like discipline. The command which the
Crown has over the services of an officer or man of the navy, army, or air force appears to me to
place the Crown exactly in the legal situation which entitles a master to maintain an action per quod
servitium amisit against a wrongdoer causing disablement to his servants. The fact that at common
law neither commission nor enlistment in the armed services does or can amount to a contract with
the Crown and neither officer nor man obtains any legal right against the Crown to pay deferred
pay, half pay, pensions or other emolument does not appear to me to be relevant to the conditions of
the cause of action. The Crown is entitled to the services of the officer or man and it is for their loss
by a wrongful act that the Crown sues the tort feasor. (at p250)

19. It is perhaps desirable to refer to the first ground given by Erle C.J. for the judgment of the
Court in Tobin v. The Queen (1863) 10 CBNS 310, at pp 347-349, 351, 352 [1864] EngR 21; (143
ER 1148, at pp 1162-1164). about which some misunderstanding seems to me to have existed. The
ground treats Captain Sholto Douglas for whose alleged tort the petitioner proceeded against the
Crown by petition of right as having purported to act in the execution of an independent
responsibility imposed on him by the Slave Trade Act 1824 (Imp.) (5 Geo. 4 c. 113, s. 43), so that
his wrong would come within the principle that when an officer in the service of the Crown is
executing an independent duty which the law places upon him the Crown is not liable for the
wrongful acts he may commit in the course of carrying on his duties (Field v. Nott [1939] HCA 41;
(1939) 62 CLR 660, at p 675 ). It is interesting to note that in imposing a liability upon the Crown
for tort the Crown Proceedings Act 1947 (Imp.) (10 & 11 Geo. 6 c. 44) expressly negatives this
ground of immunity: s. 2 (3). I do not understand Erle C.J. to treat all the duties of a naval officer in
command of a King's ship as of this description; clearly enough they are not. But reasons are given
(Tobin v. The Queen (1863) 16 CBNS, at p 352 (143 ER, at p 1164) for the view that the analogy
between the relation of the Crown to a captain in the Royal Navy and a master to a servant fails
which I think could not in principle, at all events as principle is now understood, be considered
grounds for denying the vicarious responsibility of the Crown for an officer's tortious acts. (at p251)

20. The passage states that the analogy "fails in the following respects: First, 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: and, thirdly, because the act complained of was not done by the order of the
Queen, but by reason of a mistake in respect of the path of duty". Of course if "duty" in the third
reason means an independent duty under the Slave Trade Act 1824 it is not open to any criticism in
principle. But it is hardly necessary to say that a typical case of liability for a servant's tort is when
his wrongful act is not done by the order of the master but by reason of a mistake in respect of the
path of duty, provided of course that for no other reason is the act outside the course of the
employment. The first reason given by Erle C.J., however, appears not only to treat the liability
established by proceedings in the name of the Crown as something other than the liability of the
government of the country, but also to regard the fact that the power of selection resides in a servant
or agent of the master who is the ultimate party to the relation with the person employed as
inconsistent with the relation being that of master and servant. The second of the three reasons
appears to suppose that, if a person is employed to exercise professional skill or fulfil a function the
manner of performing which is governed by standards of professional duty, such an employment
cannot give rise to a relation of master and servant. If so shipowners should not be liable for the
faulty navigation of their ships, hospital authorities for the negligence of radiologists or public
undertakers for the failure of constructional works by reason of want of care and skill in their
engineers. In the proceedings against the Commonwealth arising from the collision of H.M.A.S.
Adelaide with the ship Coptic, a stage of which is reported in Shaw Saville & Albion Ltd. v. The
Commonwealth [1940] HCA 40; (1940) 66 CLR 344 I 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. (at p252)

21. The second reason given by Erle C.J. if it were sound would be important to this case. For s. 6
of the Police Regulation Act 1899- 1947 (N.S.W.) invests the Commissioner of Police with the
power of appointing sergeants and constables of police. When they are so appointed, however, they
must be sworn to serve the Crown and on taking and subscribing the oath they are to be deemed to
have thereby entered into a written agreement with and they are to be thereby bound to serve the
King as members of the police force until legally discharged: ss. 9 and 10. The police force is a
disciplined body for the general government and discipline of whose members the Governor is
empowered to make rules: s. 12. So far I should have thought that everything pointed to a member
of the police force occupying the position of a servant of the Crown for the loss of whose services
owing to an injury caused by a wrongful act the Crown might sue the wrongdoer. But the question
remains whether because a constable is entrusted by law with specific powers and given specific
duties which he must execute as a matter of independent responsibility (Enever v. The King [1906]
HCA 3; (1906) 3 CLR 969 ; Little v. The Commonwealth [1947] HCA 24; (1947) 75 CLR 94, at p
114 ), the general relation between the Crown and a member of the police force is not that of master
and servant. In my opinion this consequence does not follow. In most respects a member of the
police force is subject to the direction and control which is characteristic of the relation of master
and servant. It does not matter that there is a chain of command. That is necessary in some degree in
all organizations military and civil, public and private. It is only when in the course of his duties as
a servant of the Crown he is confronted with a situation involving the liberty or rights of the subject
that the law places upon him a personal responsibility of judgment and action. I see no reason for
regarding the assumptions on which the decisions in Bradford Corporation v. Webster (1920) 2 KB
135 and Attorney-General v. Valle-Jones (1935) 2 KB 209 were respectively based as incorrect. (at
p252)

22. There is one further decision to mention. It is that of the Supreme Court of the United States in
United States v. Standard Oil Co. of California [1947] USSC 121; (1947) 332 US 301 (91 Law Ed
2067) where a majority of the Supreme Court declined to concede to the United States a right to
recover the pay and expenses of medically treating a soldier injured by the negligence of the
defendant. (at p253)

23. The decision was not based upon the common law. The United States did not succeed to the
prerogatives or other rights of the Crown in relation to the subject or citizen. The causes of action to
which the United States is entitled against the citizen are not the creatures of the common law.
There is no relevant common law applying to the United States' claim against the citizen and State
law was held inapplicable. (at p253)

24. The question for decision was whether the Court should not, on general principles, develop a
doctrine giving a cause of action to the government and this it refused to do. The refusal was based
upon grounds which ultimately were brought down, in the majority judgment, to the consideration
that it was a matter into which fiscal policy entered and not a pure question of what ought to be
considered a tort; it was a matter for Congress. As will be seen an understanding of the situation
with respect to the rights of action of the United States leaves the decision without relevance to the
matter for determination here. (at p253)

25. For the foregoing reasons, if the matter were to be considered afresh, I should prefer the view in
favour of the Crown's right of recovery. (at p253)

26. But I do not think that we should reconsider the correctness of the decision to the contrary in
Quince's Case [1944] HCA 1; (1944) 68 CLR 227 . The proper course judicially is to follow and
apply that decision. To do so results in my opinion in the dismissal of the appeal. (at p253)

McTIERNAN J. This action was brought in the Supreme Court of New South Wales by the
Attorney-General on behalf of the Crown. The defendants demurred to the Attorney-General's
information and the Full Court allowed the demurrer. The Attorney-General brings this appeal from
the judgment allowing the demurrer. The defendants are now the respondents. (at p253)

2. The action is shaped as an action per quod servitium amisit and is based on the loss of a
policeman's services. The Attorney-General's information alleges, in substance, that by the negligent
driving of a motor car, for which the respondents are responsible, physical injury was done to the
policeman and the Crown was thereby deprived of his services, and damages are claimed for this
loss. There is an averment that the injured policeman was a member of the police force of New
South Wales but no averment that he was a "servant" of the Crown. If the latter averment were made
the information would adhere more closely to the precedents for declarations in an action per quod
servitium amisit: Bullen and Leake, Precedents of Pleading, 3rd ed. (1868), p. 359. However, the
gist of the cause of action set forth in the Attorney-General's information seems to be the loss of the
policeman's services, occasioned by a wrong for which the respondents are alleged to be
responsible. One of the matters stated in the information is that the policeman was injured in
circumstances entitling him to pecuniary benefits under the Police Regulation (Superannuation) Act
1906-1944 (N.S.W.), upon the basis that he was then on duty. This matter could be relevant only to
the issue of damages. The action per quod servitium amisit is not confined to wrongs done in the
course of employment resulting in the loss of service; but the information is not attacked for any
defect of pleading. (at p254)

3. The demurrer raises the question whether, assuming the respondents are responsible for the
wrong alleged and it resulted in physical injury to the policeman, the Crown may bring an action per
quod servitium amisit against the respondents to recover damages for the loss of the policeman's
services. The question is not whether any employer of a person who has any of the authority of a
constable may bring an action per quod servitium amisit for the loss of his services occasioned by
an actionable wrong causing physical injury to such person. The case is concerned with a member
of the police force of New South Wales and two matters make the question one of a somewhat
special character. These matters are that the policeman was engaged in the public service of the
Crown and his engagement, duties, discipline and rights were governed by certain Acts of New
South Wales. The Police Regulation Act 1899-1947 (N.S.W.) is the Act of the greatest importance
in the case. This Act, by s. 4, empowers the Executive Government of New South Wales to appoint
a Commissioner of Police and he, under s. 6, has authority to appoint sergeants and constables of
police for the preservation of the peace throughout the State, and they, under s. 6, become bound by
all the duties and responsibilities of a constable under the common law or any statute of New South
Wales. Every member of the force is, by s. 9, required to take an oath to serve the Crown and cause
the peace to be kept and to prevent crime. The oath is, by s. 10, deemed to be a written agreement
with the Crown, binding everybody who takes it to serve the Crown as a member of the police force
at current rates of pay until legally discharged. This is a unilateral engagement on the part of the
member of the force: to s. 10 there is added the proviso that the agreement is not to be set aside,
cancelled or annulled "for want of reciprocity"; but may be cancelled by discharge, dismissal,
removal from "office", or by resignation accepted by the commissioner. Rules for the general
government and discipline of the Force may be made under s. 12 by the Executive Government of
the State. (at p255)

4. The legal relations between the Crown and the policeman, with whom this case is concerned, and
the nature of his services for the loss of which the Crown claims damages, are established by these
references to the Police Regulation Act. The relations arose out of the Act and ex lege: the Crown
and the policeman were not master and servant in the legal sense: the members of the police force of
New South Wales are engaged in public service: they are organized by the Executive Government of
New South Wales as a civil force responsible for maintaining public order: the policeman was
bound by an engagement having statutory force to serve the Crown in the public office of a
constable and as a member of this force: and the relations of its members, as such, with the Crown
are in no wise private or domestic. (at p255)
5. In the case of Commonwealth v. Quince [1944] HCA 1; (1944) 68 CLR 227 the Court by a
majority decided that the law did not provide the Commonwealth, in other words the Crown in right
of the Commonwealth, with an action per quod servitium amisit based on the loss of the services of
a member of the Royal Australian Air Force, even though the loss resulted from physical injury
occasioned by the defendants' wrong. The Full Court of New South Wales applied that decision in
the present case and founded the judgment allowing the demurrer upon it. Their Honours were of
opinion that so far as the Police Regulation Act 1899-1947 regulated the relations of the policeman
to the Crown, it was parallel with the Commonwealth laws which determined the airman's relations
with the Crown, and the service which the policeman engaged to perform for the Crown was
analogous to service which the airman engaged to render for the Crown, and the service in each case
fell into the category of public service. (at p255)

6. In the first place it was argued for the Attorney-General that Quince's Case [1944] HCA 1; (1944)
68 CLR 227 does not govern the present case because material distinctions can be drawn between
the airman's and the policeman's relations to the Crown and the nature of their duties and discipline.
It was argued that by virtue of the Acts of New South Wales, a member of the police force of the
State is a servant, in the legal sense, of the Crown. The references made to the Police Regulation
Act show that this contention cannot stand upon that Act. Reliance, in order to sustain the
contention that the policeman was in the situation of a servant in the legal sense, was placed upon
other Acts of New South Wales under which rights and privileges are given to members of the
force. It was argued that the relations of a member of the police force of New South Wales are
thereby assimilated to those of an ordinary worker in industry. The Acts upon which most reliance
was placed were the Crown Employees Appeal Board Act 1944 and the Industrial Arbitration Act
1940-1951. These Acts granted to members of the police force of the State certain rights that are
enjoyed by other branches of the public service of the State and by industrial workers. In either Act,
or in any Act, to which reference was made in argument, there is nothing which alters the essential
character of the relations between the Crown and any policeman, as determined by the Police
Regulation Act 1899-1947, or the nature of his service. The Crown's right to the service of the
policeman did not depend upon a contract of hiring and service: it depended upon laws analogous to
those upon which the Crown's right to the services of the airman in Quince's Case [1944] HCA 1;
(1944) 68 CLR 227 depended: police service in the police force of New South Wales and military
service in the Royal Australian Air Force are both public service. The result is that Quince's Case
[1944] HCA 1; (1944) 68 CLR 227 governs the present case. (at p256)

7. Upon the assumption that the Court would arrive at that conclusion a submission was made for
the appellant that Quince's Case [1944] HCA 1; (1944) 68 CLR 227 should be reviewed. In view of
this submission, perhaps it is useful to repeat some of the things said in the judgments in Quince's
Case [1944] HCA 1; (1944) 68 CLR 227 . The action per quod servitium amisit comes down from
an epoch when the master's right to the service of his servant depended on status: the master was
considered to have an interest of a proprietary nature in the service. The action survived the change
from status to contract or free service, remaining as an incident peculiar to the relationship of master
and servant. The law had applied the action to protect the relations between parent and child, but
upon the basis that the child was in the parent's service. When the action arose the relations of
master and servant in the legal sense belonged to the order of domestic relations: then, father,
mother, children, apprentice and servant were all members of the familia. In modern times the law
continues to use the action for the protection of the relations of father and child; and still upon the
basis that the child is in her father's service. Tindal C.J. said in Grinnell v. Wells (1844) 7 Man & G
1033, at pp 1041, 1042 [1844] EngR 1038[1844] EngR 1038; ; (135 ER 419, at p 423) : "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; and it is the invasion of the same legal right, and no other, which
gives the father the right of action against the seducer of his daughter". But, of course, the action per
quod servitium amisit is not limited to the family circle. Abbott C.J. said in Hall v. Hollander (1825)
4 B & C 660 at p 663 (107 ER 1206, at p 1207) : "It is a principle of the common law that a master
may maintain an action for a loss of service, sustained by the tortious act of another, whether the
servant be a child or not". The principle is anomalous as an incident of a contract: yet it is annexed
to the relations of master and servant even though they are created by contract and nobody now
supposes that a master has an interest of a proprietary nature in the service performed for him under
a contract. Tindal C.J. observed in Martinez v. Gerber (1841) 3 Man & G 88, at p 91 (133 ER 1069
at p 1070) that it is enough to allege that the person injured was the plaintiff's "servant", but there is
no need to state that he was "hired at any wages or salary". Bovill C.J. said in Evans v. Walton
(1867) LR 2 CP 615, at p 620 that the "authorities and the principle upon which the action for
assaulting a servant (per quod servitium amisit) is founded, would seem to shew that an actual
binding contract is not necessary". That is true at least in the case of an action per quod servitium
amisit brought by a father against the seducer of his daughter. Perhaps the statements made in
Admiralty Commissioners v. S.S. Amerika (1917) AC 38 about the action per quod servitium amisit
contain the most authoritative account of it. Lord Sumner said (1917) AC, at p 55 : "It is the loss of
service which is the gist of the action, and loss of service depends upon a right to the service, and
that depends on the contract between the master and the servant". (at p257)

8. In Bradford Corporation v. Webster (1920) 2 KB 135 the corporation successfully sued for an
injury done to a constable in the service of the corporation whereby they were deprived of his
service. It appears from the report of the case (1920) 2 KB, at pp 135, 136 that the City of Bradford
had a duly established police force and the Corporation of the City, acting through their Watch
Committee, were "the police authority of the force". The corporation entered into a "contract of
service" with each member of the force, which bound him to devote the whole of his time to the
police force and not to engage in any other occupation: and his pay and allowances were subject to
the contract. The defendant denied liability on the ground that from the date of the injury the
corporation did not suffer any damage by the loss of the service of the constable. The question
whether the corporation had a right of action was not raised. That case can be distinguished. There
the constable was not in the service of the Crown: he was paid, no doubt, out of the funds of the
corporation. Cave J. said in the case of In re Mirams (1891) 1 QB 594, at p 596 : "To make the
office a public office, the pay must come out of the national and not out of local funds, and the
office must be public in the strict sense". By this criterion the constable in the Bradford Corporation
Case (1920) 2 KB 135 was not engaged in public service in the strict sense. Another distinction is
that the corporation had entered into a contract of service with him; its right to his service depended
on the contract. (at p258)

9. The Bradford Corporation Case (1920) 2 KB 135 was discussed by McCardie J. in Fisher v.
Oldham Corporation (1930) 2 KB at pp 374,375 . He said that the Bradford Corporation action was
apparently framed on the assumption that the police constable was the servant of the corporation
and the point, whether he was or not, was not raised in the case. The learned judge said nothing to
suggest that it could not have been successfully raised. The Oldham Corporation Case (1930) 2 KB
364 was not an action per quod servitium amisit. The question there was whether a police constable
appointed by the corporation was their servant in the legal sense so that the corporation was liable
for torts committed by him in the execution of his duty within its area. McCardie J. said that the
Bradford Corporation Case (1920) 2 KB 135 was no authority to establish that the corporation and a
constable appointed by them were master and servant. After referring to, among other cases, Enever
v. The King [1906] HCA 3; (1906) 3 CLR 969 the learned judge said, as to the proposition that the
corporation and the constable were master and servant, "So to hold would be contrary, in my view,
to statute, to established decision and to sound public policy". However, he set forth some
considerations by which he thought that the decision in the Bradford Corporation Case (1920) 2 KB
135 might be supported. McCardie J. said that the action per quod servitium amisit rested on the old
and very artificial rule that "a master has some sort of property in the service of one who is a
servant, or even a quasi servant" (1930) 2 KB, at p 375 ; and he observed that even "so slender a
claim" such as a father has to the service of a grown-up daughter who happens to be living at home
may afford the basis for the action. The Bradford Corporation's right to the service of the constable
depended upon the contract of service between them and the constable. The constable could hardly
have been a quasiservant on the analogy of the relation of a daughter to her father. If under the
express contract of service between the corporation and the constable he was not in the strict sense a
servant of the corporation, there was no fiction under which he could be their servant or quasi-
servant. (at p259)

10. In the case of Attorney-General v. Valle-Jones (1935) 2 KB, at p 213 , counsel for the defendant
said it was not denied that "an action for loss of the services of a servant by the tortious act of a
third party is available to the Crown as employer as well as to a subject". The action was determined
on the footing that the airmen in that case were the servants of the Crown and as master of each
airman the Crown could recover damages for the loss of his services. The defendants in Quince's
Case [1944] HCA 1; (1944) 68 CLR 227 did not concede that the action would lie. The
Commonwealth alleged in the statement of claim that it was the employer of the airman. This was a
somewhat vague allegation. In truth, the airman's relations with the Commonwealth were governed
by the Air Force Act 1923-1941 and the regulations made under this Act. On enlistment the airman
took the prescribed oath and he was bound by these statutory provisions to serve the King according
to its tenor. He swore that he would serve His Majesty in the air force, resist the King's enemies,
cause his peace to be maintained and discharge his duties according to law. (at p259)

11. It must be remembered that Lord Sumner said in the case of Admiralty Commissioners v. S.S.
Amerika (1917) AC, at p 51 , "No claim has been made and no evidence has been given relating to
damage sustained by the appellants in losing the further services of those who were drowned, and so
different both in its nature and its incidents is the service of the seamen of His Majesty's Navy from
the service of those who are in private employment that it may be questioned whether in any case an
action per quod servitium amisit could have been brought at all". The absence of such a count in
that case is important in considering whether the action per quod servitium amisit pertained to the
field of public employment as well as to private employment and domestic relations. It may be
presumed that if the claim could have been made for the loss of the services of the seamen it would
have been made. However, in the case of the Attorney-General v. Valle-Jones (1935) 2 KB 209 it
was conceded that there was a good cause of action. Yet the airmen and the seamen appear to have
belonged to the same category of servants. Our attention was not directed to any development in the
law in the period between those cases which removed the doubt raised by Lord Sumner. Perhaps
between the case of the airmen and that of the seamen there were distinctions which explain why in
the action brought by the Attorney-General against Valle-Jones, the substantial point which was
doubted by Lord Sumner was allowed to go by default. (at p260)

12. The differences between the nature and incidents of public service and private employment are
brought out in the Thirteenth and Fourteenth Chapters of Book 1 of Blackstone's Commentaries.
The former chapter deals with public service and the latter with private employment. The 13th
chapter begins with a statement about the "military state", and at a later stage discusses the
"maritime state". The seamen of the Royal Navy are assigned to this order. The airman in Quince's
Case [1944] HCA 1; (1944) 68 CLR 227 and the policeman in the present case both belong to the
categories which are to be found in the 13th chapter. The 14th chapter is headed "Of Master and
Servant" and the introduction is as follows: - "Having thus commented on the rights and duties of
persons, as standing in the public relations of magistrates and people, the method I have marked out
now leads me to consider their rights and duties in private economical relations". The relation "of
master and servant" is described as one of the "three great relations in private life". The others are
stated to be "husband and wife" and "parent and child". The nature and incidents of private
employment are then discussed. Blackstone says the relation of master and servant was instituted to
enable a master to answer cares incumbent on him for which "his own skill and labour will not be
sufficient". The incidents of the relation are set forth. One of the matters mentioned is this: "A
master also may bring an action against any man for beating or maiming his servant: but in such
case he must assign, as a special reason for so doing, his own damage by the loss of his service; and
this loss must be proved upon the trial": Blackstone's Commentaries, p. 429. The action which the
master could bring is an action per quod servitium amisit. The learned author observes "The reasons
and foundation, upon which all this doctrine is built, seem to be the property that every man has in
the service of his domestics; acquired by the contract of hiring, and purchased by giving them
wages". The doctrine includes the principle that the master may bring trespass, and also case, for
personal injury to a servant per quod servitium amisit. The enlistment of the airman for the loss of
whose service the Commonwealth sued in Quince's Case (1944) 68 CLR 227 was not a contract of
hiring and service. There is no warrant in the law for attributing to the enlistment and service under
it the incidents peculiar to the relation of master and servant in the legal sense, and to private service
for a master. The airman was a servant in the popular sense: he was engaged in public service in the
strict sense: his duties and functions were official and public. The airman was not in the personal or
private employment of the Crown. Within that field the Crown had not acquired by a contract of
service any right to the airman's service. The statement, made by Lord Sumner in the case of S.S.
Amerika (1917) AC 38 that the action per quod servitium amisit depends upon the right to the
service and that right depends upon the contract of hiring is an affirmation of the doctrine regarding
the relations of master and servant set forth in the 14th chapter of Blackstone's Commentaries. This
is true also of the explanation given by McCardie J. in Fisher v. Oldham Corporation (1930) 2 KB
364 that the action was based on the artificial rule that the master had some sort of property in "the
service of one who is a servant, or even a quasi servant". The doctrine set forth in the 14th chapter
gives much force to Lord Sumner's statement questioning whether public service was within the
scope of the action. Clearly the action per quod servitium amisit had its origin in the rules applying
to the legal relationship of master and servant. Public service is not within the scope of the action
because master and servant is a relation in private life: private employment is not within its scope
unless the employer and employed are respectively master and servant. It would be wrong to extend
the action to public service or to service which is incident to any relationship other than that of
master and servant in the legal sense. Such an extension would open the door to actions by the
Crown for the loss of the service of holders of public offices of all grades. There is no authority for
deciding that the action lies in those cases. (at p261)

13. Nothing said in argument has given me any reason to conclude that Quince's Case [1944] HCA
1; (1944) 68 CLR 227 was wrongly decided. In my opinion it was rightly decided. At any rate, it
has not been shown to be manifestly wrong. The rule of stare decisis should be applied to the
decision. In the present case the policeman was engaged in public service: he was not a servant in
the legal sense of the Crown: his service was strictly and exclusively public service. (at p261)

14. 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. (at p262)

WILLIAMS J. 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 [1944] HCA 1[1944] HCA 1; ; (1944) 68 CLR 227 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. (at p262)

2. 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 therin 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. (at p265)

3. 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 [1906] HCA 3; (1906) 3 CLR 969 ; Field v. Nott [1939] HCA 41[1939] HCA
41; ; (1939) 62 CLR 660 ). 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. (1916) 2 AC
556 . 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 (1930) 2
KB, at p 371 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 [1951]
UKHL 1; (1951) AC 507 ). (at p265)

4. In these circumstances I agree with their Honours of the Supreme Court that it is impossible to
distinguish the present case from Quince's Case [1944] HCA 1; (1944) 68 CLR 227 . Accordingly
we can only allow the appeal if we are prepared to reconsider Quince's Case, as we were invited to
do, and overrule it. I am of opinion that Quince's Case should be reconsidered and that it should be
overruled on the grounds on which this Court reconsiders and overrules its previous decisions,
namely that the decision is manifestly wrong and its maintenance is injurious to the public interest
(Perpetual Executors and Trustees Association of Australia Ltd. v. Federal Commissioner of
Taxation (Thomas's Case) [1949] HCA 4; (1949) 77 CLR 493 ). (at p266)

5. 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 (1911) AC 413 , 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 (1867) LR 2 CP 615 ; Berringer v. Great Eastern Railway Co. (1879) LR 4 CPD 163 ;
Mankin v. Scala Theodrome Co. Ltd (1947) 1 KB 257 . In Robert Marys's Case [1572] EngR 315;
(1612) 9 Co Rep 111b (77 ER 895, at pp 898, 899) 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". (at p267)

6. The majority of the Justices in Quince's Case [1944] HCA 1; (1944) 68 CLR 227 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" (1944) 68 CLR, at p 243 . 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" (1944) 68 CLR, at p 246 . 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" (1944) 68 CLR, at p 250 . (at p268)

7. 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 [1944] HCA 1; (1944) 68 CLR 227 the Court was not referred to the case of the
Owners of S.S. Raphael v. Brandy (1911) AC 413 . That case has been recently cited in a number of
cases of which I need only mention M'Mahon v. David Lawson Ltd. (1944) AC 32 . 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 (1911) AC 413 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 pounds 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 (1911) 1 KB 376 , 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" (1911) 1 KB, at p 380 .
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" (1911) 1 KB, at p 382 . 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" (1911) AC, at p 414 . 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" (1911) AC, at p 415 . There is also the statement of Lord Parker of
Waddington to the same effect in Admiralty Commissioners v. S.S. Amerika (1917) AC, at p 42 ,
"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". (at p269)

8. 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 (1911) AC
413 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 (1947) 74 CLR 245 ). 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 (1844) 7 Man & G,
1033, at p 1041 [1844] EngR 1038[1844] EngR 1038; ; (135 ER 419, at p 423) , 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. (at p270)

9. It was contended for the respondents that the action per quod servitium amisit is anomalous and
artificial and should not be extended. But it is of very ancient vintage and is after all only one aspect
of that branch of the law which gave a master a right of action where he was deprived of the
services of his servant by that servant being knowingly enticed away, or harboured, or where that
servant was seduced or injured by the wrongful act or omission of the defendant and thereby
became unable to do his work. In the present case s. 10 of the Police Regulation Act provides that
every person taking and subscribing the oath required by s. 9 shall be deemed thereby to have
entered into a written contract and shall be bound to serve Her Majesty as a member of the police
force until legally discharged. Such a contract would embody terms and conditions equivalent to the
provisions of the statutes and rules appertaining to that service. Under his engagement a policeman
must wear uniform as required, must go on duty when and where directed, and must give
unquestioned obedience to the commands of his superior officers. He must continue to perform
these duties until he is discharged or can lawfully resign. These are terms and conditions which are
applicable to a contract of service. They are not applicable to a mere contract for services. The
anomaly, if there be any, is that while Quince's Case [1944] HCA 1; ; (1944) 68 CLR 227 stands, it
is the law of Australia that the action per quod servitium amisit lies where a master, including
presumably the Crown, is wrongfully deprived of the services of any servant performing services
that could be rendered under a contract of private employment, but does not lie where the victim is
performing services of a public nature for the Crown. (at p270)

10. The question at issue on this appeal recently arose in Canada in R. v. Richardson and Adams
(1948) 2 DLR 305 . 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 (1946) 2 DLR 481 , 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
[1944] HCA 1; (1944) 68 CLR 227 . Section 50A was passed to overrule the previous decision of
the Supreme Court of Canada in McArthur v. The King (1943) 3 DLR 225 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 (1911) AC 413 had been
cited to the Court. The importance of Richardson's Case (1948) 2 DLR 305 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. (at p271)

11. For these reasons I would allow the appeal. (at p271)

WEBB J. This is an appeal from a judgment on a demurrer for the defendants in an action per quod
servitium amisit brought by the appellant, the Attorney-General of New South Wales, against the
respondents, Perpetual Trustee Co. (Ltd.) and others, to recover salary and allowances paid to a
police constable whilst disabled from performing his duties, and for damages in respect of a pension
paid to him on his discharge. The constable, it was alleged, was injured and permanently disabled
when a tram in which he was travelling between his residence and his place of duty collided with a
motor vehicle negligently driven by an employee of the respondents. The respondents demurred on
the ground that the declaration was bad because:

(1)  it  disclosed  no  cause                                              of  action;

(2) the action per quod servitium amisit did not lie at the suit of the

Crown for loss of the services of a member of the police force. (at p272)

2. It was submitted for the appellant that The Commonwealth v. Quince [1944] HCA 1; (1944) 68
CLR 227 was distinguishable; or, if not, that it was not correctly decided; that a member of the New
South Wales police force was deemed on taking the oath of office to have a statutory contract with,
and to be the employee of, the Crown; that under an award of the State Industrial Commission he
had a right to his remuneration which he could recover as it became payable during his service; and
that he was obliged to obey commands given on behalf of the Crown. On the other hand it was
submitted for the respondents that the action per quod servitium amisit was based on history and not
on legal principle; that it began when the head of the household had complete control of, and a
proprietary interest in, the services of his family and servants; that the basis of the action was not
extended; that the services, the subject of the action could not be different from what they were in
the days when status and proprietorship applied; and that the action was available where there was a
contractual relationship to which the doctrine respondeat superior applied; whereas a constable was
a ministerial officer exercising statutory rights independently of contract. (at p272)

3. The action per quod servitium amisit originated at a time when the relationship of master and
servant (or quasi-servant in the case of a member of the master's family) to which it has always been
confined, was based on status and not on contract, that is to say, when the legal right or interest of
the master in the services lost was of a proprietary nature, and the master, therefore, had complete
control of those services. The right of action did not depend on the payment of wages by the master
to the servant. The damages were measured by the value of the services lost, which in turn might be
measured by the extent of the remuneration, if any, of the servant. The action did not disappear with
status, but continued when the relationship of master and servant became contractual. (at p272)

4. The nature and incidents of the service of a constable as a peace officer or ministerial officer of
the Crown are stated in Enever v. The King (1906) 3 CLR, at pp 975, 976 per Griffith C.J. and
include authority to arrest on suspicion of felony, which does not admit of control by the Crown.
This authority could not have arisen from status and have been of a proprietary nature; and so a
claim for the loss of the services of a constable could never, I think have been within the scope of
the action per quod servitium amisit. However, the contrary view appears to have been taken in
Bradford Corporation v. Webster (1920) 2 KB 135 and in Receiver for the Metropolitan Police
District v. Tatum (1948) 2 KB 68 . But in neither case was the question of liability raised: the only
question in each case was the quantum of damages. (at p273)

5. Considerable attention was paid by counsel for the appellant to the statutory provisions securing
the payment of salaries of constables in New South Wales. But these provisions do not alter the
peculiar nature and incidents of the constable's services as an officer of the Crown, which are, I
think the only relevant consideration in determining whether the action lies: see Admiralty
Commissioners v. S.S. Amerika (1917) AC, at p 51 per Lord Sumner. (at p273)

6. As to the application of Quince's Case [1944] HCA 1; (1944) 68 CLR 227 , although much help
is to be derived from the arguments of counsel and from the reasoning of their Honours in that case,
still I think the duties of a soldier and those of a police constable are, and always have been, so
different that if the decision had been in favour of the Crown it would not have governed this case.
A police constable has always been an arm of the law and never a servant employed to do a master's
bidding on all occasions and in any circumstances. His authority is original, and not derived from a
master or exercised on behalf of one, but is exercised on behalf of the public, and so the loss of
services rendered in its discharge cannot, in my opinion, be the subject of compensation recoverable
in an action per quod servitium amisit: see Enever v. The King (1906) 3 CLR, at p 976 , per Griffith
C.J. and (1906) 3 CLR, at p 994 , per O'Connor J. (at p273)

7. I would dismiss the appeal. (at p273)

FULLAGAR J. This is an appeal from a judgment of the Full Court of New South Wales on a
demurrer to the declaration in an action in which the Attorney-General for New South Wales sued
the Perpetual Trustee Co. Ltd., Matilda Jane Bruce Johnson, William Frederick Johnson and Arthur
Douglas Dunn. The declaration alleged that one Bertrand Leslie Hayden, a member of the police
force of New South Wales, was injured by the negligent driving of a motor car, which was owned
by the first two defendants as executors of the will of Frederick James Johnson, and was being
driven by the defendant Dunn for and on behalf of and as agent for the defendant William Frederick
Johnson. The injuries received by Hayden disabled him from the performance of his duties, and
during the period of his disability he was paid by the Crown the salary and allowances to which he
was entitled. At a later date he was discharged from the force by reason of disablement consequent
on his injuries. He thereupon became entitled to receive, and has been paid and is still being paid, a
pension under the Police Regulation (Superannuation) Act 1906-1944 (N.S.W.). If he had not been
injured, he would not, it is alleged, have become entitled to a pension "for a long time". The
declaration concludes: - "And the Attorney-General claims on behalf of His Majesty to recover the
salary and allowances paid as aforesaid and to be reimbursed in respect of the moneys already paid
and which will hereafter be paid to the said Bertrand Leslie Hayden pursuant to the Act aforesaid".
The grounds of the demurrer were (1) that the declaration disclosed no cause of action, and (2) that
the action per quod servitium amisit does not lie at the suit of the Crown for the loss of the services
of a member of the police force. The Full Court, considering the case to be covered by The
Commonwealth v. Quince [1944] HCA 1; (1943) QSR 199; (1944) 68 CLR 227 ordered that
judgment in demurrer be entered for the defendants. (at p274)

2. 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 pounds and
hospital and medical treatment to the value of 286 pounds, and after his discharge further medical
treatment at a cost to the Commonwealth of 73 pounds and a pension of which the amount paid to
date of action brought was 60 pounds. The Commonwealth claimed to recover these sums from
Quince and also a sum of about 2 pounds 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 pounds owed in respect of clothing - presumably, as Latham C.J. said (1944) 68 CLR, at p
233 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 (1943) QSR, at p 205 : "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". (at p275)

3. An appeal to this Court was dismissed. Latham C.J. and Williams J. thought that the action could
be maintained, but the majority of the Court (Rich, Starke and McTiernan JJ.) thought that it could
not. It may be noted that the two dissentient justices would have assessed the damages at 456
pounds, which would have excluded the claim in respect of medical attention after discharge and the
claim in respect of the pension. These were presumably excluded because the payments made were
thought to be discretionary and not made in pursuance of a legal duty. (at p275)

4. Each of the justices who formed the majority in Quince's Case [1944] HCA 1; (1944) 68 CLR
227 delivered a separate judgment, but they reached their conclusion, I think, for substantially the
same reasons. Perhaps the fullest statement of them is to be found in the judgment of Rich J., and it
will be sufficient at this stage to refer to that judgment. In a very important and obviously very
carefully considered passage his Honour said (1944) 68 CLR at pp 240, 241 : - "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 Societe
Anonyme de Remorquage a Helice v. Bennetts, (1911) 1 KB 243 ; Admiralty Commissioners v. S.S.
Amerika (1917) AC, at pp 43, 45 ; Wright v. Cedzich [1930] HCA 4; (1930) 43 CLR 493 . 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 (1917) AC, at pp 44, 45 ; Holdsworth, History of English Law, 2nd ed. (1937), vol. viii, p.
429; Wright v. Cedzich (1930) 43 CLR, at p 521 ), 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" (1944) 68 CLR, at p 242 . 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 [1923] HCA 64;
(1923) 34 CLR 174, at pp 183, 184 . 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" (1944) 68 CLR, at p 243 . See also the
judgments of Starke J. (1944) 68 CLR, at pp 246, 247 and of McTiernan J. (1944) 68 CLR, at pp
250, 251 . (at p276)

5. 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 (1898) 15 WN (NSW) 28 . 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 (1937) 37 SR (NSW) 430 it was
held that a police constable is liable to dismissal at the pleasure of the Crown. (at p278)

6. This brief survey of the position under the statute of members of the police force of New South
Wales shows clearly, I think, that it is impossible to distinguish that position in any relevant respect
from the position in Tasmania as explained in Enever v. The King [1906] HCA 3; (1906) 3 CLR
969 . The very special position of a constable of police is well illustrated by Horne v. Coleman
(1929) 46 WN (NSW) 30 . And it seems to me to make it equally clear that it is impossible to
distinguish the present case from The Commonwealth v. Quince (1944) 68 CLR 227 or to say that a
relation which was held by the majority not to exist between Rowland and the Crown did exist
between Hayden and the Crown. It is necessary only, I think, to refer briefly to two particular
arguments which were submitted by counsel for the plaintiff in this case. (at p278)

7. 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 servituim amisit in respect of the loss of such services"
(1944) 68 CLR, at p 243 . 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" (1944) 68 CLR, at p 246 . 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" (1944) 68 CLR, at p250 . It cannot be
maintained that these passages do not apply to and govern the present case. (at p279)

8. The other argument which I think should be mentioned rested on the fact that the Industrial
Arbitration Act 1940-1943 (N.S.W.) which applied to the Crown as an "employer" but expressly
excepted the police force from its operation, was so amended by s. 2 of Act No. 28 of 1946 as to
make its provisions generally applicable as between the Crown and members of the police force.
The result of proceedings under the Act might, of course, be to affect profoundly the content of the
rights and duties of the Crown and members of the police force with respect to one another. But the
Act of 1946 does not appear to me to affect the nature or kind of the duties of members of the police
force under the common law or under the Police Regulation Act, or the nature or kind of the
"services" which they perform. And it is the nature or kind of their duties and services that forms the
whole basis of the view taken by the majority in Quince's Case. (at p279)

9. For these reason I am of opinion that the present case is indistinguishable from Quince's Case. We
were, however, invited, if we formed that view, to reconsider Quince's Case and to say that the view
of the minority in that case was correct. This invitation was supported mainly by reference to certain
authorities, one of which is earlier than Quince's Case but was not cited therein, and the rest of
which are later than Quince's Case. I propose to refer to certain authorities and then attempt to
explain, as briefly as I can, why I think that there should be no departure from Quince's Case. (at
p279)

10. I should have thought myself that the weight of English authority at the time when Quince's
Case was decided, while not very strong, was definetly in favour of the view of the majority in that
case. In the S.S. Amerika Case (1917) AC, at p 51 Lord Sumner in a well known passage had said: -
"So different both in its nature and its incidents is the service of the seamen of His Majesty's Navy
from the service of those who are in private employment that it may be questioned whether in any
case an action per quod servitium amisit could have been brought at all". It may be truly said, of
course, that this merely expresses a doubt, but a doubt so expressed by Lord Sumner comes very
near to being authority against the proposition which is doubted. The passages in the opinion of
Lord Parker, to which Latham C.J. referred in Quince's Case (1944) 68 CLR, at p 236 tend, to my
mind, strongly in the same direction. These dicta of their Lordships are entitled, of course, to the
greatest weight. The view of the majority in Quince's Case was also supported by Fisher v. Oldham
Corporation (1930) 2 kb 364 in which McCardie J. had delivered a careful and closely reasoned
judgment holding that a police officer appointed by a borough corporation was not a servant of the
corporation. He had called attention to Stanbury v. Exeter Corporation (1905) 2 KB 838 and had
shown grave reasons for doubting the correctness of Bradford Corporation v. Webster (1920) 2 KB
135 . He had expressed agreement with the judgment in Enever v. The King (1906) 3 CLR 969 . On
the other hand, in Attorney-General v. Valle-Jones (1935) 2 KB 209 effect had indeed been given to
a similar claim by the Crown, but the question of the Crown's right was never raised, and what is
said by MacKinnon J. (1935) 2 KB, at p 220 most certainly does not dispose of what Lord Sumner
said in the Amerika Case (1917) AC, at p 51 . The case of Attorney-General v. Dublin United
Tramways Co. Ltd. (1939) IR 590 , was decided before Quince's Case, but does not appear to have
been cited in it. In this case Maguire P. decided that the relationship of master and servant existed
between the People of Eire and the members of the civil guard, that the Attorney-General, as
representing the People of Eire, could sue for damages for loss of the services of a member of the
Guard, and that the wages payable to him for the period of his incapacity provided a proper measure
of the value of his services. The three later cases cited by counsel for the Crown were United States
v. Standard Oil Co. of California [1947] USSC 121; (1947) 332 US 301 (91 Law Ed 2067) ; R. v.
Richardson (1948) SCR (Can) 57 and Receiver for the Metropolitan Police District v. Tatum (1948)
2 KB 68 . (at p280)

11. The actual decision in the Standard Oil Case [1947] USSC 121; (1947) 332 US 301 (91 Law Ed
2067) (a case of an injured soldier) went on the grounds that no State law could apply to the federal
"Government-soldier relation", and that there was no federal law which gave to the United States
the right claimed. It is clear, however, that the majority were disposed to the view that the
"Government-soldier relation" differed materially from the ordinary master-and-servant relation.
They refer (1947) 332 US, at p 313 (91 Law Ed, at pp 2074, 2075) to the fact that "it is the
Government's interests and relations that are involved, rather than the highly personal relations out
of which the assertedly comparable liabilities arose", and (in a note (1947) 332 US, at p 312 (91
Law Ed, at p 2074) ) to the "rather far-fetched" view which regards "the drafted soldier as having
entered into a 'contract implied in law'". Jackson J. dissented, but it is interesting to note that he did
not base his dissent on the view that liability arose because the soldier was a servant and the United
States was his master. He based it on the very much broader ground that the damages claimed
represented loss flowing from a wrongful act for which the defendant was responsible. I will refer
again later to this view. (at p281)

12. In the Canadian case, R. v. Richardson (1948) SCR (Can) 57 (also a case of a soldier) a
Canadian statute, passed in 1943, had provided 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 24th
day of June 1938 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". Quince's Case was referred to in
the course of the judgments, but it was not disputed that the statute covered the question which was
at issue in, and decided by, Quince's Case. The main importance of the case lies in what is said as to
the measure of damages. On this question, the majority of the Court took the same view as was
taken by Maguire P. in Attorney-General v. Dublin United Tramways Co. Ltd. (1939) IR 590 but the
dissenting judgment of Kellock J. on this matter must command the respectful attention of any
Court in which the actual decision is not binding authority. (at p281)

13. In Tatum's Case (1948) 2 KB 68 the plaintiff receiver was a statutory corporation sole, and, as
such, the custodian of a fund out of which he had the duty of paying the wages and allowances of
members of the police force and all other "charges and expenses" which the Home Secretary should
direct him to pay. Out of this fund he lawfully paid the hospital charges and the pay and allowances
of a member of the force who was injured through the negligence of the defendant, and he sued to
recover from the defendant the amounts so expended. The sole argument presented by counsel for
the defendant appears to have been that the Crown ought to have been the plaintiff, because the
policeman was a servant of the Crown and not of the receiver. The whole question now at issue,
therefore, simply went by default, Atkinson J. holding that the receiver, having suffered loss to his
fund, was entitled to recover. I think, with great respect, that it was quite wrong to suggest that
McCardie J. in Fisher v. Oldham Corporation (1930) 2 KB 364 , thought either that the Crown (if it
were liable in tort) would be liable for a wrongful arrest made by a police officer or that the Crown
could maintain an action for a wrongful act through which it had lost the services of a police officer.
It is true that that learned Judge referred more than once to such an officer as being in the service of
the Crown or in the service of the State, but the purpose of this was merely to emphasize that he was
not a servant of the defendant corporation. The whole trend of the judgment is against the view
implicitly imputed to him, and his Lordship respectfully expressed his strong approval (1930) 2 KB,
at pp 371, 372 of each of the judgments in Enever v. The King [1906] HCA 3; (1906) 3 CLR 969 .
(at p282)

14. It seems at first sight a very remarkable thing that the question should have received so little
serious consideration, but I think it is simply because it is only in the Dublin Tramways Case (1939)
IR 590 and Quince's Case that it has been fairly and squarely raised and argued. As is testified by
the differences of opinion in those two cases, the question is both difficult and important, and the
concession to the Crown of the right claimed seems to me to involve some very serious
implications. The difficulty of the question perhaps derives in part from the poverty of our technical
vocabulary, which makes it often hard to express with any degree of accuracy distinctions which
one feels are fundamental. But, however this may be, it is clear, in my opinion, that there is nothing
in any of the cases, to which I have referred, to compel or justify a reconsideration of Quince's Case.
No point is made in any of them that was not fully considered in Quince's Case, and we ought not to
depart from decided cases except in the light of clear and cogent reasoning or very definite superior
authority. We should, in my opinion, adhere to Quince's Case unless and until the House of Lords or
the Privy Council may require us to adopt a different view. (at p282)

15. Up to this point, I have been attempting to look at the whole matter from the point of view of
authority. But I think that I ought to express, and attempt to explain, my own opinion on the
question. If the matter were entirely open, I would regard the view that the defendants should
succeed in this case not only as more in accord with modern notions and with the realities of human
relationships to-day, but as on the whole more just. The view which I would myself take does not, as
will be seen, rest on a distinction between the Crown and a private employee of to-day. If, however,
I were persuaded that it is too late in the day for my view to be accepted, I would regard the
distinction taken in Quince's Case as a perfectly sound distinction. (at p283)
16. 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 (1906) 1 KB 178 ). It may be said that the famous case of Tobin v. The Queen [1864] EngR
21; (1864) 16 CBNS 310 (143 ER 1148) 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. (1864) 16 CBNS, at pp 349, 350 (143 ER, at p 1163) . 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
(1864) 16 CBNS, at p 368 (143 ER at p 1172) : - "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 [1940] HCA 40[1940] HCA 40; ; (1940) 66 CLR
344 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. (1940) 66 CLR, at pp 352, 353 and
per Williams J. (1940) 66 CLR, at p 365 . There is, I think, nothing in Enever v. The King [1906]
HCA 3; (1906) 3 CLR 969 or in Baume v. The Commonwealth [1906] HCA 92; (1906) 4 CLR 97
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 [1917] HCA 77; (1917) 24 CLR 166; (1920) 27
CLR 552 and Field v. Nott [1939] HCA 41; (1939) 62 CLR 660 , 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 [1947] HCA 59; (1947) 75 CLR 203 .
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. (at p284)

17. I would think, in the next place, however, that there is no relation or correspondence whatever
between the rule which has made a master vicariously responsible for torts committed by his servant
in the course of his employment and the rule which has entitled a master to sue for an act which is
tortious as against his servant and has deprived him of that servant's services. Neither historically or
logically would it be true to say that the one rule is, or ever was, the complement of the other, or has
or ever had anything to do with the other. This is made very plain (though I think, with great
respect, that it points in a direction opposite to that in which it led his Honour) in the judgment of
Latham C.J. in Quince's Case (1944) 68 CLR, at pp 235, 236 in a passage which cites a number of
authorities and begins with the sentence: - " In my opinion, the applicability or non-applicability of
the rule respondeat superior has no relevance in relation to the liability of the defendant in an action
based on a claim for damages for loss of services". There may indeed be said to have been a sort of
negative community between the two rules. For the notion that the Crown should be liable for the
torts of its servants was probably not more remote from any conception of the common law than
was the notion that the Crown should be able to bring an action in trespass or case per quod
servitium amisit. (at p284)

18. The truth is that the two classes of action have always involved radically different notions of
what constitutes service. For the purposes of a master's liability in tort, a particular relation
(normally contractual) involving a right of control over the acts of the immediate wrongdoer is
essential. The servant is distinguished from the independent contractor: see e.g. Queensland Stations
Pty. Ltd. v. Federal Commissioner of Taxation (1945) 78 CLR 539, at p 545 . The theory is that he
who has the control should carry the responsibility, and the right of control in the actual execution
of the work is said to be the test to be applied in determining whether the relationship which
involves responsibility exists or not. When control ceases, responsibility ceases, and a master is not
liable for wrongs committed by his servant outside the course of his employment. All these
considerations are wholly irrelevant when a master brings an action for a tort committed against his
servant. Here the only relevant questions (apart from damages) are (1) whether services were in fact
being rendered to him by the injured person, and (2) whether he had a reasonable expectation,
because of the existence of a contract or otherwise, that that person would, if the tort had not been
committed, have continued to render services to him. A servant may have two or more masters, but
only one master (the master in the course of whose employment he was acting at the relevant time)
can be vicariously liable for his wrongs. On the other hand, there is no reason why two or more
masters could not sue for the same wrong committed against the servant: see for example Rist v.
Faux [1863] EngR 1010; (1863) 4 B & S 409 (122 ER 573) . (at p285)

19. These considerations remove, or ought to remove, the temptation, which is so apt to assail us, to
import a meretricious symmetry into the law. But they are important for another reason. They serve
to explain why it is that the question of nature and degree of control over the acts of an alleged
servant has arisen in countless cases where the vicarious liability of an alleged "master" is asserted,
but seems never to have arisen in an action for damages per quod servitium amisit. There is a
theoretical justification for asking it in the former class of case, because what we are concerned with
is the responsibility of the defendant for the act of another. In the latter class of case, there is no
such justification for asking it, because what we are concerned with is what the plaintiff has lost. (at
p285)

20. Logically, at the present day, I can see no reason for distinguishing, where A has suffered loss
through injuries inflicted on B, between a case in which B was a servant of A and a case in which B
was a partner or an independent contractor, or between a case in which B was a servant of A and a
case in which A and B were insurer and insured. As Lord Kinloch said in Allan v. Barclay (1864) 2
M (SC) 873, at p 874 , "If the claim be competent to a master, it is, by parity of reason, competent
to everyone, in whatever relation, who can shew himself to have suffered loss by the physical
incapacitation of another". It is possible to perceive a tendency to say that liability exists in all these
cases in the dissenting judgment of Jackson J. in United States v. Standard Oil Co. of California
[1947] USSC 121[1947] USSC 121; ; (1947) 332 US 301 ( [1947] USSC 121; 91 Law Ed 2067) ;
see also Mankin v. Scala Theodrome Co. Ltd. (1947) KB 257 , in which it appears to have been
assumed without much justification that Mankin was a servant of Cochrane. With Mankin's Case
(1947) KB 257 may be usefully contrasted the robust and logical view taken in Scotland in Reavis
v. Clan Line Steamers Ltd. (1925) SC 725 . It is necessary, however, to add that the circumstances
in Mankin's Case (1947) KB 257 were peculiar, and it might well have been held that, whether
Mankin was a servant or not, Cochrane, as well as Mankin, ought to have been within the
contemplation of the defendant as a person likely to suffer, through the negligence alleged, the
damage which he did in fact suffer. I am very far from suggesting that the actual decision in
Mankin's Case (1947) KB 257 was wrong. (at p286)

21. The view which seems implicit in the judgment of Jackson J. (1947) 332 US, at pp 317, 318 (91
Law Ed, at pp 2076, 2077) 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" (1944) 68 CLR, at p 240 . 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 (1864) 2 M (SC) at p 874 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 [1942] UKHL 5; (1943) AC 92
, 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. (at p287)

22. 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 (1944) 68 CLR, at pp 236, 237 , 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 [1853] EngR 15; (1853) 2 El & Bl 216 (118 ER 749) 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. (at p288)
23. In the famous words of Lord Chief Justice Willes, "when the nature of things changes, the law
must change too" [1864] EngR 21; (1864) 16 CBNS 310 (143 ER 1148) . Because the proprietary
idea on which the exception to the general rule was founded has long since ceased to have any life
or reality, and because the exception is intrinsically illogical and unreasonable, my own opinion is
that claims such as that made in the present case ought not to be recognized at all to-day. I think that
that would have been Lord Sumner's view, if it had been necessary for him to decide the point. The
adoption of such a view might well be accompanied by a similar realistic approach to the action of
seduction, and by a recognition that it is, as Salmond puts it, "based in substance and in fact on the
injury to the honour and feelings of the parent". "It is greatly to be desired", says Salmond (Torts,
2nd ed., p. 393), "that the law should be put on a more rational basis, and that the real cause of
action should receive legal recognition instead of being made available by means of a device which
is little better than a legal fiction". The hardship and inconvenience that may be caused by the
survival of the fiction are well illustrated in Serjeant Manning's note to the report of Martinez v.
Gerber (1841) 3 Mon & G, at p 91 (133 ER, at p 1070) . The action of seduction is still a living
thing, and probably a necessary thing, though it is not, I think, a very common action to-day.
Seduction is a malicious wrong against a person whose existence is known to, or ought reasonably
to be contemplated by, the wrongdoer. Such a claim as the present is based on a breach of an alleged
duty of care owed to a person who could no more fairly be expected to be in the contemplation of a
defendant than an independent contractor or a partner or an insurer against accident. (at p288)

24. I think that it is quite open to this Court to take either or both of the steps suggested in the
preceding paragraph. And, as at present advised, I should myself be prepared to take it. It is for this
reason that, even if I did not regard Quince's Case as binding upon me, I should nevertheless decide
this case in favour of the defendants. As I have said, however, if I could be persuaded that this view
is too iconoclastic, I would regard the distinction taken in Quince's Case as sound. If the exception
to the general rule must stand, I do not think that its scope ought to be extended, and I do think that
its application in favour of the Crown does involve a drastic extension of it. On this aspect of the
matter I will say no more than that I have read the judgment of my brother Kitto, and that I
respectfully agree with it. (at p289)

25. I will conclude with certain observations on the question of damages. These have, I think, a two-
fold importance. In the first place the remoteness of the theory of the action per quod servitium
amisit from the relation of the Crown to its servants is emphasized when we look at the measure of
damages in such cases. In the second place, it becomes apparent, I think, that, even if it be conceded
that the Crown can maintain an action of this nature, the declaration in this particular case is
demurrable because no loss is alleged in respect of which damages are recoverable. (at p289)

26. In considering damages, it will be well to put on one side the action of seduction, which
developed along lines of its own. This action was (or became) available although, because she was
capable of consenting and had consented, no actionable wrong had been done to the woman or girl
seduced. In every other case it was necessary that the act complained of should have been wrongful
as against the servant. Again, seduction is a malicious wrong, and, if "service" be formally proved -
even in the form of the proverbial "making of cups of tea" - damages may be said to be "at large" in
the sense that, within wide limits, a jury's verdict will not be interfered with. They may include
solatium for dishonour and wounded feelings, and they may even be exemplary or punitive. It is
interesting at this stage to reflect on the possibilities of an action brought by the Crown for the
seduction and subsequent confinement of a senior officer in a Women's Auxiliary Army Corps. Such
an action would, of course, lie if the plaintiff is right in the present case. The officer might be
dismissed from the service pour encourager les autres, but she might be retained in the service and
paid, and it might be necessary to appoint additional sergeant-majors, and engage in costly
propaganda, in order to prevent or cure a decline in morale in the Corps. Other expensive
consequences suggest themselves as capable of being visited on the seducer, who may not have
known until too late that the lady, with whose full approval he acted, was owned by the Crown.
Whether damages could be recovered for the lacerated feelings of the Crown as parens patriae is a
question which may be left to be considered when it arises. (at p289)

27. In master and servant cases other than actions of seduction it is, in my opinion, a great mistake
to say that damages were ever "at large". It is quite possible that exemplary damages might be
allowable if the wrong were a malicious wrong as against the master, but in a case of negligence I
would think it clear that the field of damages was strictly limited to pecuniary loss actually sustained
through the loss of the services of the servant and (so far as it was not included in the estimate of
that loss) expenditure necessarily incurred in consequence of the injury to the servant. In
Flemington v. Smithers (1826) 2 C & P 292, at pp 292, 293 [1826] EngR 1023[1826] EngR 1023; ;
(172 ER 131, at p 132) Abbott C.J. directed the jury to award damages "for the loss the plaintiff has
sustained in being deprived of the assistance of his son, and also the expense he may have been put
to by his being out of his place": Cf. the direction of Lord Denman C.J. in Hodsoll v. Stallibrass
(1840) 11 Ad & E 301, at p 303 [1840] EngR 302; (113 ER 429, at p 430) and note the form of the
declaration at p. 302. There can be no justification for saying that the measure of damage is
provided even prima facie by the amount paid as wages to the servant during incapacity, even if
wages are so paid in pursuance of a legal obligation. It is simply not true to say that they represent
the loss suffered. Such an amount bears no necessary relation whatever to the loss (if any) sustained,
and the adoption of it as a sort of rule of thumb serves simply to reveal the practical impossibility of
applying the conception of damages for loss of services to the cases under consideration. As
McTiernan J. said in Quince's Case (1944) 68 CLR, at p 251 "a soldier's pay is not a criterion of the
value of his services". It is, in truth, idle to attempt to assess the value to the Crown of the services
of a police constable or a soldier. (at p290)

28. Two special heads of damage require a little consideration. The first is medical expenses, and
the second is payment of a pension. The damages claimed in Quince's Case included medical
expenses, but there is no such claim in the present case. In both cases a claim in respect of payment
of a pension was included as part of the damages. In Quince's Case all the justices were of opinion
that the claim in respect of the pension could not be sustained, while the minority thought that the
medical expenses could be recovered. (at p290)

29. With regard to medical expenses, it is a possible view that these should be recoverable,
irrespective of any services rendered by the victim, by any person who was under a legal duty to the
injured person to pay them. It may well be said that, whoever has to pay them, they cannot be
regarded as too remote: their being incurred is in every sense the natural and probable consequence
of the tort. This view was suggested in Hall v. Hollander (1825) 4 B & C 660 (105 ER 1206) ,
where the plaintiff was unable to prove that his injured child had rendered any services to him. It is
not necessary to determine this question. However it should be answered, it seems entirely contrary
to principle to say that such expenses are recoverable by any person who was not under a legal duty
to pay them. A father is under a duty to provide medical services for his child. Whether a master
was subject to a similar duty in relation to his servant (apart from express contract) is a question on
which there has been some conflict of authority. The better view seems to be that he was not. The
cases are discussed in a note to Sellan v. Norman [1829] EngR 695; (1829) 4 C & P 79 (172 ER
616) . Lord Kenyon in Scarman v. Castell (1795) 1 Esp 270 (170 ER 353) held that a master was
bound to pay for medicines supplied to his servant while under his roof and part of his family, but in
Wennall v. Adney [1802] EngR 403; [1802] EngR 403; (1802) 3 B & P 247 (127 ER 137) , Heath J.
said: "I believe that the humanity of Lord Kenyon misled him". In Reg. v. Smith [1837] EngR 985;
(1837) 8 C & P 153 (173 ER 438) , Patterson J. directed a jury that by the general law a master was
not bound to provide medical services for a servant, but that the case was different with respect to
an apprentice. It seems never to have been thought that a master owed such a duty to a servant
except to an apprentice or one who lived under his roof, and I think, with respect, that Williams J.,
in Smaill v. Alexander (1904) 23 NZLR 745 wrongly applied the cases relating to father and child
to a case which was merely that of master and servant. The seduction cases, as I have already said,
stand on a footing of their own. (at p291)

30. With regard to pensions, the question has several times arisen whether the value of a pension is
to be taken into account in assessing damages in an action by the person actually injured. The cases
have not been, at first sight, easy to reconcile. In Bradburn v. Great Western Railway Co. (1874) LR
10 Ex 1 it was held that moneys payable to the plaintiff under an accident policy were not to be
taken into account in the assessment of damages. (The doctrine of subrogation could not, of course,
apply to such a case). But in Lory v. Great Western Railway Co. (1942) 1 All ER 230 , Asquith J.
(as he then was) held that pensions were of a different nature and must be taken into account. In
Payne v. Railway Executive (1951) WN 240 (in which Lory's Case was not cited) Sellers J.
appeared to have taken a different view. In Baker v. Dalgleish Steam Shipping Co. (1922) 1 KB 361
the Court of Appeal held that a pension which was in fact being paid by the Crown ought to be
taken into consideration notwithstanding that it was dependent on the voluntary bounty of the
Crown, although, if it were voluntary, allowance must be made for the possibility or probability that
the Crown would reduce the amount of the pension in the light of the award of damages. The latest
case which I have seen is Smith v. British European Airways Corporation (1951) 2 KB 893 in which
Hilbery J. applied Lory's Case (Payne's Case not being cited) and held that a pension must be taken
into consideration. Payne's Case has now been considered by the Court of Appeal, which has
affirmed the judgment of Sellers J. (1952) 1 KB 26 . A distinction is drawn between cases at
common law and cases under Lord Campbell's Act. In the former class of case the amount of the
pension must be disregarded: in the latter class of case it is to be taken into account. (at p292)

31. The position thus seems to be that cases under Lord Campbell's Act form, by reason of the
special measure of damages applicable in such cases, an exceptional class of case. Cases at common
law are governed, in respect of pensions and other sums which become payable by reason of injury,
by the rule in Bradburn v. Great Western Railway Co. (1874) LR 10 Ex 1 which has generally, I
think, been regarded as laying down an important general principle. In that case Pigott B. said:
"There is no reason or justice in setting off what the plaintiff has entitled himself to under a contract
with third persons by which he has bargained for the payment of a sum of money in the event of an
accident happening to him. He does not receive that sum of money because of the accident, but
because he has made a contract providing for the contingency: an accident must occur to entitle him
to it, but it is not the accident but his contract that is the cause of his receiving it" (1874) LR 10 Ex,
at p 3 . If the pension is paid voluntarily, the case seems a fortiori: it would surely be out of the
question to reduce damages by a sum which some benevolent persons had collected for the benefit
of a man crippled in an accident. (at p292)

32. 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 (1917) AC 38 . 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" (1917) AC, at p 42 . 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" (1917) AC,
at p 61 . This is, as his Lordship proceeds to point out, entirely in accord with the principle of
Bradburn's Case (1874) LR 10 Ex 1 . So Cohen L.J. (as he then was) in Payne v. Railway Executive
(1952) 1 KB, at p 36 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. (1952) 1 KB, at p 38 . (at p293)

33. I am of opinion that the Crown has no cause of action in such a case as the present. But, even if
I were of a contrary opinion, I should still regard the declaration in this case as demurrable on the
ground that no loss is alleged in respect of which damages are recoverable. (at p293)

KITTO J. This is an appeal from an order of the Supreme Court of New South Wales allowing a
demurrer to an information exhibited against the respondents by the appellant, the Attorney-General
of New South Wales, suing on behalf of His Majesty. The information alleges, in effect, that one
Bertrand Leslie Hayden, who was a member of the police force of New South Wales, received
bodily injury by the negligent management of a motor vehicle on a public highway by a person for
whose negligence the defendants were responsible, and that by reason of Hayden's resulting
disablement from the performance of his duties, which led to his discharge from the police force,
His Majesty was deprived of his services as a member of that force. The information also alleges
that while Hayden continued in the police force after his disablement, he was paid the salary and
allowances appropriate to his office and to which he was entitled, and that since his discharge he has
been paid and will continue to be paid a pension in accordance with Police Regulation
(Superannuation) Act 1906-1944 (N.S.W.). The claim made by the Attorney-General on behalf of
His Majesty is "to recover the salary and allowance paid as aforesaid and to be reimbursed in respect
of the monies already paid and which will hereafter be paid to the said Bertrand Leslie Hayden
pursuant to the Act aforesaid". (at p294)

2. As a general rule, where A is prevented from fulfilling his obligations to B by reason of an injury
wrongfully inflicted upon him by C, B has no right of action against C in respect of his loss; but an
exception exists in the case where A's obligations arise out of a relationship of master and servant
existing between B and himself (Admiralty Commissioners v. S.S. Amerika (1917) AC, at pp 43, 45
). The question in this case is whether the relationship of master and servant exists between the
Crown in right of the State of New South Wales and a member of the police force of that State so as
to entitle the Attorney-General to maintain his action as falling within the exception to the general
rule. The main difficulty in answering the question arises from the fact that the expression "master
and servant" has not a fixed meaning at all times and in every context. Sir John Macdonell observed
in his work on The Law of Master and Servant, 2nd ed. (1908), at pp. 9, 10: "The term (servant) is,
in fact, used loosely and in different senses. No definition which would include all its significations
in statutes, in questions as to common employment, in settlement cases, in actions for seduction or
for enticing away, and in wills, is possible. The word has not been employed in the same sense at
different periods of history. It has been extended to relations to which it was not once applicable".
(at p294)

3. 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 (1841) 3 Man & G, at pp 90,
91 (133 ER, at pp 1069, 1070) . The speeches delivered by their Lordships in the case of the
Admiralty Commissioners v. S.S. Amerika (1917) AC 38 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. (1947) KB 257 ). 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 [1931] UKHL 3
[1931] UKHL 3; ; (1932) AC 562 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. (at p295)

4. This is made very clear by the decisions of the courts as to the right of a parent to recover
damages in respect of injury inflicted on his child. Even under the pressure of the sentimental
considerations inseparable from such cases, the courts have always steadfastly refused to allow the
competence of such an action on any other basis than that of master and servant, for only in the
infringement of rights considered to be proprietary have they been able to see any sound foundation
for giving a remedy to one person by reason of physical injury wrongfully done to another. Thus in
Barham v. Dennis [1653] EngR 170[1653] EngR 170; ; (1630) Cro Eliz 770 (78 ER 1001) it was
said in the Court of Common Pleas that: "it hath been adjudged that (a writ of trespass) lies for a
parrot, a popinjay, a thrush, and . . . for a dog; the reason thereof is, because the law imputes that the
owner hath a property in them . . . Here the father hath not any property or interest in the daughter,
which the law accounts may be taken from him . . . It is clear also, that for the imprisoning of the
daughter, the action is not given to the father, but to the daughter herself". But where the child
renders services to the parent, however slight they may be, the law is content to conclude (by "a
species of fiction": Blackstone's Commentaries, 15th ed., Book 1, p. 429 (n); see also Serjeant
Manning's note to Grinnell v. Wells (1844) 7 Man & G, at p 1044 [1844] EngR 1022; (135 ER 424)
), that the relation of master and servant exists; and, once that step is taken, a proprietary interest in
the parent has been discovered, and a right of action on an established principle can be allowed: Hall
v. Hollander [1825] EngR 777; (1825) 4 B & C 660 (107 ER 1206) ; Grinnell v. Wells ; [1844]
EngR 1038; (1844) 7 Man & G 1033 (135 ER 419) ; Evans v. Walton (1867) LR 2 CP 615 . (at
p296)

5. 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 [1853] EngR 15; (1853) 2 El & Bl
216 (118 ER 749) (see especially De Francesco v. Barnum (1890) 63 LT 514, at p 515 ), 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 (1881) LR 6 QBD 333 ; Quinn v. Leathem [1901] UKHL 2; (1901) AC 495, at p 510 ). 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 [1841] EngR 707; (1841) 3 Man & G 88 (133 ER 1069) ; Evans v.
Walton (1867) LR 2 CP 615 . 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 [1853] EngR 15;
[1853] EngR 15; (1853) 2 El & Bl 216 (118 ER 749) 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. (at p297)

6. 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. (1946) SC (HL) 24, at pp 33, 34 , 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. (at
p298)

7. Blackstone in his Commentaries, Book 1, p. 422, described the relation of master and servant as
one of "the three great relations in private life", and as a relation "whereby a man is directed to call
in the assistance of others, where his own skill and labour will not be sufficient to answer the cares
incumbent upon him". There is here a recognition that the particular relation of master and servant
which formerly was a matter of status is essentially a relation in the affairs of private life with
respect to work to be done by one person for another. For the performance of such work, the
persons immediately available in more primitive times would naturally be those in the potestas of
the master - the members of his actual household. But he may need the aid of others, and, if so,
those whose services he obtains become part of his menage either in a narrow or an extended sense.
Thus at the root of the conception of the master and servant relation was the family, that is to say the
familia, the household establishment. So we find Sir Frederick Pollock saying in connection with
this subject: "the relation of master and servant . . . is still regarded for some purposes as belonging
to the permanent organism of the family": Pollock on Torts, 14th ed. (1939), p. 179. And perhaps it
was this which led Eyre C.J. in Taylor v. Neri (1795) 1 Esp 386 (170 ER 393) , to say at nisi prius
that he did not think the court had ever gone further than the case of a menial servant; for the word
"menial" was derived from the Saxon word meiny or mesnie, signifying a household or family (In re
Unemployment Insurance Act, 1920 (1922) 1 KB 166, at p 170 ). (at p299)

8. Of course the widening of the range of private enterprise meant that the link between many kinds
of servants and the households of their masters became attenuated and ceased to have any reality;
but the relation has remained in the law as one which enables a man in the conduct of his private
affairs to avail himself of the services of others who will enter into the appropriate relationship with
him for that purpose. This is reflected in one of the definitions of "service" given in the Oxford
English Dictionary: "work done in obedience to and for the benefit of a master"; and the correlative
definition of a "servant" may be quoted from the same source: "one who is under obligation to work
for the benefit of a superior and to obey his (or her) commands". The definition in the American
Restatement of the Law, Vol. 1, Agency, p. 483, is to the like effect: "A servant is a person
employed to perform service for another in his affairs, and who, with respect to his physical conduct
in the performance of the service, is subject to the other's control or right to control": (quoted, as
being in accordance with our law, by Latham C.J. in Federal Commissioner of Taxation v. J. Walter
Thompson (Aust.) Pty. Ltd. [1944] HCA 23; (1944) 69 CLR 227, at p 233) ). (at p299)

9. 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
(1880) 6 QBD, 530, at pp 532, 533 : "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. [1946] UKHL 1; (1947) AC 1, at p 17 , 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. [1946] UKHL 1; (1947) AC 1 . 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. (at p300)

10. These considerations suggest an explanation of the fact that, with one recent exception, no
reported case is to be found in England, throughout the long history of the action per quod servitium
amisit, in which the Crown has recovered damages in such an action. What is the relationship
between the Crown and members of that broad class of persons who are said to be "in the service of
the Crown"? It is a relationship which may or may not entail obedience to orders; judges, for
example, in the performance of their judicial functions are immune from all control by the Crown.
Again, where there exists an obligation of obedience to orders, the obligation may not extend to the
manner in which duties shall be performed; witness the case of the pilots with whose position the
Privy Council was concerned in Fowles v. Eastern and Australian Steamship Co. Ltd. (1916) 2 AC
556 . Further, where there is an obligation to obey orders as to how work shall be done, the power to
give orders may reside in another officer of the Crown, so that the King may have no power of
control, or only an indirect power as a result of the fact that the Ministers of the Crown hold office
during the King's pleasure: Maitland, Constitutional History of England, p. 418. And of the greatest
significance for present purposes is the fact that, even where there is an obligation to obey the
orders of the Crown as to the manner in which duties are to be performed, the power of the Crown
exists, not for its own benefit, but for the benefit of the State of which the Sovereign is the head.
The employment is to perform service for the State in its affairs, not for the King in his own affairs;
and the relationship is therefore not one which is created for the furtherance of any person's
individual ends and is not a relationship of private life at all. (at p301)

11. It is true that the word "servant" is commonly used in such expressions as "public servant", "civil
servant" and "servant of the Crown"; but the very qualifying words themselves point to the essential
difference. They lift the word "servant" into a new and very different context; they emphasize that
the services which flow from the relationship are of a public character, and are not owed to any
individual for the advancement of his own concerns. In so far as the Executive may be entitled to
insist upon their performance, it is for the reason only that the Executive is the organ of the State
invested with that function. As Lord Esher M.R. said in Dunn v. The Queen (1896) 1 QB 116, at p
118 , "All service under the Crown itself is public service . . . all public service under the Crown is
for the public benefit"; and the Court of Appeal held in that case that it was the public policy of the
country - "the public interest" as Lord Herschell said (1896) 1 QB, at p 119 - that made it necessary
to import into contracts of employment in the service of the Crown (in the absence of statutory
provision to the contrary) a term entitling the Crown to determine the employment at its pleasure.
The service of the Crown and private service, despite their points of resemblance, belong, therefore,
to different fields of law. The Crown has its own peculiar rights, powers and responsibilities in
connection with the conduct of the public affairs of the State; and it is, I think, a mistake to try to
force the relationships into which the Crown enters with its subjects for the conduct of those affairs
into categories established in the domain of private law, which, by their nature and their history, are
appropriate only to relationships between subjects. (at p302)

12. The Supreme Court of the United States in United States v. Standard Oil Co. (1949) 332 US, at
p 313 (91 Law Ed, at pp 2074, 2075) drew a sharp distinction between "the Government's interests
and relations" and "the highly personal relations" out of which the liability for causing loss of
services arises. In Admiralty Commissioners v. S.S. Amerika (1917) AC, at p 51 Lord Sumner said:
". . . so different both in its nature and incidents is the service of the seamen of His Majesty's Navy
from the service of those who are in private employment that it may be questioned whether in any
case an action per quod servitium amisit could have been brought at all". In Reading v. Attorney-
General (1951) AC, at p 517 Lord Normand said: ". . . the relation of a member of His Majesty's
forces to the Crown is not accurately described as that of a servant under a contract of service"; and
Lord Oaksey said (1951) AC, at p 518 : "the appellant, who was a soldier on active service in time
of war, was not an ordinary servant". "The relation of an officer (in the Indian Army) . . . to the
Crown", said Grove J. in Grant v. Secretary of State for India (1877) 2 CPD 445, at p 453 "is not in
the nature of an ordinary contract". I do not understand the decision of the House of Lords in
Owners of S.S. Raphael v. Brandy (1911) AC 413 to be at all inconsistent with this view. All that
was there decided was that the employment in the Royal Naval Reserve of a person who was also
employed on a merchant ship was a concurrent contract of service within the meaning of the
Workmen's Compensation Act, 1906 (Imp.) (6 Edw. 7 c. 58). It does not follow that their Lordships,
if they had had occasion to consider the matter, would have held that the contract created the strict
relationship of master and servant as it is understood in the common law. (at p302)

13. The only reported case in England in which the Crown has obtained damages for the loss of
services of one of its "servants" appears to be Attorney-General v. Valle-Jones (1935) 2 KB 209
where the point went by concession, and the only matter contested before the Court was the measure
of damages. The case cannot stand with the decision of this court in The Commonwealth v. Quince
[1944] HCA 1; (1944) 68 CLR 227 . The correctness of that decision having been challenged in this
case, I must say, with respect, that in my opinion the case was rightly decided. There are two
observations which I am led to make by consideration of the criticisms offered upon the decision in
Quince's Case. The first is that, while an obligation of obedience to orders as to the manner of doing
work is a sine qua non of the relation of master and servant, it does not follow that the existence of
such an obligation is conclusive that the relation out of which it arises is that of master and servant.
Secondly, I have not been able to follow how (apart from some special statutory provision) it can be
maintained that the relation of master and servant may exist without a liability attaching to the
master for acts of his servant done in the course of his service. (at p303)

14. The particular class of persons in the service of the Crown with which the present case is
concerned is the police force of New South Wales. That force is a regular service of the Crown; it is
a disciplined force in the service of the Crown (Fletcher v. Nott [1938] HCA 25; (1938) 60 CLR 55,
at p 77 ). Its organization and government are provided for by the Police Regulation Act, 1899-1947
(N.S.W.), the provisions of which have been sufficiently stated in the judgments already delivered.
(at p303)

15. The position of a police officer under provisions such as these has been examined by this Court
in Enever v. The King [1906] HCA 3; (1906) 3 CLR 969 , and Ryder v. Foley [1906] HCA 61;
(1906) 4 CLR 422 . These cases establish that in the execution of his duties a constable has powers
and discretions which he derives, not by delegation from the Crown, but from the nature of his
office, and which he exercises on his own independent responsibility. They justify the views
expressed in Delacauw v. Fosbery (1896) 13 WN (NSW) 49 in which Stephen J. said: "The acts of a
police constable are not in any sense performed on behalf of the Government, but are done by
reason of the allegiance he owes to the Crown"; and Simpson J. said, "A constable is not an ordinary
servant of the Government. He is a servant of His Majesty, and he has certain special duties which
attach to him as a peace officer". (The latter statement provides a good illustration of the different
senses in which the word "servant" may be used.) The matter may be summed up by saying that a
member of the police force is under an obligation to perform duties of which some are statutory,
some derive from the common law, and all are of a public character; and although a member of the
police force is bound to obey the lawful orders of his superiors (s. 14), neither they nor the Crown
itself can lawfully require him to abstain from performing the duties which the law imposes upon
him with respect to the preservation of the peace and the apprehension of offenders, or can lawfully
direct the detailed manner in which he shall perform those duties, and neither they nor the Crown
itself (although amenable to actions of tort in New South Wales) can be held liable for acts done by
a constable in relation to the duties of his office. These considerations seem to me sufficient in
themselves to negative the existence of a master and servant relationship. (at p304)

16. It may be said that it is the King's peace that a constable is required to preserve; but that peace
"according to ancient ideas is the peace of the nation rather than of the King"; Maitland,
Constitutional History of England. p. 108. It is worth mentioning, too, that the ultimate direction of
the police force is vested, by s. 4 of the Police Regulation Act, not in the Crown but in the Minister;
and, although in a political sense this may come to much the same thing, the distinction exists in
point of law. Indeed a similar provision relating to the police force in England was selected by
Maitland to give point to his observation that "To a very large extent indeed England is now ruled
by means of statutory powers which are not in any sense, not even as strict matters of law, the
powers of the King": Maitland, Constitutional History of England, pp. 415, 417. (at p304)

17. Accordingly, even if it were to be conceded that with respect to some classes of persons in the
service of the Crown the relation of master and servant in the strict sense exists, I should be of
opinion that that relation does not exist between the Crown and a member of the police force,
having regard to the nature of his office, the public character of his duties, the absence of power in
the Crown to control the performance of his duties, and the consequential non-liability of the Crown
for acts done within the scope of his duties. (at p304)

18. A decision which, if correct, is against this view was given by A. T. Lawrence J. in Bradford
Corporation v. Webster (1920) 2 KB 135 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 (1930) 2 KB, at p 375
McCardie J. thought that the Bradford Corporation Case (1920) 2 KB 135 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 (1920) 2 KB 135 ought not to be accepted as a correct decision on the
question of liability. The decision in Fisher v. Oldham Corporation (1930) 2 KB 364 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 (1906) 3 CLR 969 and contains a valuable
discussion of the nature of a constable's office. McCardie J. said (1930) 2 KB, at p 371 "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. (at p305)

19. The Court was referred to the case of Receiver for the Metropolitan Police District v. Tatum
(1948) 2 KB 68 , but no separate argument was based upon it. The case has no bearing upon the
matter I have been discussing, but, if correctly decided, it might provide support for an alternative
argument in favour of the appellant. With great respect to the learned Judge who decided it, I find
myself unable to regard his decision as a correct application of the principles to which he referred,
and in my opinion the case affords no assistance to the appellant here. (at p305)

20. In my opinion the demurrer was rightly allowed, and the appeal should be dismissed. (at p305)

ORDER

Appeal dismissed.

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