Attorney-General (NSW) v Perpetual Trustee Co Ltd

[1952] HCA 2

85 CLR 237

ATTORNEY-GENERAL FOR NEWSOUTH

THE PERPETUAL TRUSTEE COMPANY

RESPONDENTS. (LIMITED) AND OTHERS

ON APPEAL FROM THE SUPREME COURT OF 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).

The action per quod servitium amisit does not lie at the suit of the Crown in respect of the loss of the services of a member of the police force of the

So held by Dixon, McTiernan, Webb, Fullagar and Kitto JJ. (Williams J. dissenting).

The Commonwealth v. Quince, (1944) 68 C.L.R. 227, followed. Nature of the relationship between the Crown and a member of the police force, considered.

Dixon J. concurred in the decision of the Court on the ground that The Commonwealth v. Quince, (1944) 68 C.L.R. 227, governed the question but expressed the view that it was wrongly decided.

Decision of the Supreme Court of New South Wales (Full Court): Attorney- General v. Perpetual Trustee Co. (Ltd.), (1951) 51 S.R. (N.S.W.) 109 68 W.N. 116, affirmed.

85 CLR 238

APPEAL from the Supreme Court of New South Wales.

By an information brought in the Supreme Court of New South Wales by the Attorney-General for that State, suing on behalf of His Majesty the King, against Perpetual Trustee Co. (Ltd.) and Matilda Jane Bruce Johnson, the executor and executrix respec- tively of the will of Frederick James Johnson, trading as F. W. Johnson, and Arthur Douglas Dunn and William Frederick Johnson, Co. (LTD.).

the informant claimed from the defendants the sum of £5,050 3s. 9d.

It was alleged in the declaration that at all material times the said executor and executrix were, as such, the owners of a motor vehicle which was being driven on a public highw by the defendant Arthur Douglas Dunn for and on behalf of and as agent for the defendant William Frederick Johnson, and Bertrand Leslie Hayden was a member of the police force of the said State and was lawfully passing along that public highway in a tram-car which was one of the daily or other periodic journeys referred to in S. 10A of the Police Regulation (Superannuation) Act 1906-1944, and thereupon the motor vehicle was driven, managed and controlled SO negligently, carelessly and unskilfully that it was forced and driven against the tram-car whereby Hayden, without his own or wilful act and otherwise than during or after any substantial interruption of or deviation from the said journey made for a reason unconnected with his duty and otherwise than during or after any other break in that journey which having regard to all the circumstances was not reasonably incidental to that journey, received bodily injury which disabled him from the performance of his duties as a member of the said police force, and during the period of that disability and whilst Hayden continued as a member of that police force he was paid the salary and allowances appropriate to his office and to which he was entitled although His Majesty was during that period deprived of his services as a member of the police force by reason of the said disability, and afterwards Hayden by reason of the said disablement was discharged from the police force and His Majesty was thereby deprived of his services as a member thereof and upon his discharge was paid and would continue to be paid a pension in accordance with the provisions of the Police Regulation (Super- annuation) Act 1906-1944, whereas but for such disablement Hayden would not have commenced to receive a pension in accordance with the provisions of that Act for a long time. The Attorney-General claimed on behalf of His Majesty to recover the salary and allow- ances SO paid and to be reimbursed in respect of the moneys already paid and which would thereafter be paid to Hayden pursuant to the said Act.

85 CLR 239

In addition to pleading not guilty and denying some of the facts alleged in the declaration, the defendants demurred to the declaration on the grounds 1 that it did not disclose any cause of action, and 2 that the action per quod servitium amisit did not lie at the suit of the Crown for the loss of the services of a member of the police force.

Issue was joined. The Full Court of the Supreme Court (Street C.J., Maxwell and Owen JJ.) gave judgment for the defendants on the demurrer Attorney-General v. Perpetual Trustee Co. (Ltd.) (1).

From that decision the informant appealed to the High Court. Relevant statutory provisions are sufficiently set forth in the judgments hereunder.

E. S. Miller K.C. (with him H. Maguire), for the appellant. The facts of this case are distinguishable from the facts in The Commonwealth v. Quince (2), upon which the decision of the Court below was based. Alternatively, that case was wrongly decided see Australian Law Journal (1945), vol. 19, p. 2, particularly at p. 4. Police officers are now within the scope of the jurisdiction of the Industrial Commission to the same extent as any other employees of the Crown Industrial Arbitration Act 1940-1951 (N.S.W.), S. 5. The Industrial Commission can regulate the terms and conditions of their employment to the same extent as other Crown employees. The Commissioner of Police is an " employer" within the meaning of the Crown Employees Appeal Board Act 1944 (N.S.W.), and members of the police force are " officers" within the meaning of that Act. So far as that Act is concerned, a member of the New South Wales police force is in the same position as any officer of the public service. Police officers are excluded from the operation of the Workers' Compensation Act 1926-1951 (N.S.W.) by S. 6 of that Act, but by reason of SS. 10 and 10A of the Police Regulation (Superannuation) Act 1906-1944 (N.S.W.) they are in exactly the same position as other persons working under a contract of service. The relationship of a civil servant to the Crown is contractual, and he can bring an action for breach of contract (Lucy v. The Common- wealth 3 ). The decision in Shaw Savill and Albion Co. Ltd. v. The Commonwealth 4 establishes that a shipping company can sue the Commonwealth for damages for negligence on the part of the master of a vessel of the Royal Australian Navy, and must have been on

1(1951) 51 S.R. (N.S.W.) 109; 68 2(1944) 68 C.L.R. 227. 3(1923) 33 C.L.R. 229. 4(1940) 66 C.L.R. 344. 85 CLR 240

OF the basis that the principle of respondeat superior applies.

Quince's Case 1 each of the members of the Court who constituted the majority confined his attention to the matter there in question, that is, to the position of a member of the services. Under S. 10 of the Police Regulation Act 1899-1947 (N.S.W.) a member of the police force may sue for his salary, independently of any award, and this distinguishes him from a member of the forces under Co. (LTD.).

consideration in Quince's Case (1). As was pointed out by Latham C.J. in Quince's Case 2 the right to bring this type of action does not depend upon the existence of a contract of service: see also Bradford Corporation v. Webster 3, Attorney -General v. Valle-Jones 4, Fisher v. Oldham Corporation 5, United States v. Standard Oil Co. of California 6, R. v. Richardson 7 and Receiver for the Metropolitan Police District v. Tatum 8. The remarks of Lord Sumner in Admiralty Commissioners v. S.S. Amerika 9 were merely obiter. In Attorney-General v. Dublin United Tramways Co. (1896) Ltd. 10 the Court took the view that the relationship of master and servant existed between the people of Eire and a member of the civic guard, and that the Attorney-General suing on behalf of the people can recover damages for the negligence of the defendant per quod. Regard should also be had to Carolan v. Minister for Defence 11. Decisions such as Enever v. The King 12 do not determine the soundness of the claim put forward on behalf of the appellant. The fact that members of the police force have, by law, an independent discretion conferred upon them does not prevent them from being servants in the ordinary sense, nor does it prevent the principle of respondeat superior from applying. The Coal Mines Regulation (Amendment) Act 1941, (N.S.W.) by the Sixth Schedule, confers duties and discretions on many employees, and if such an employee injured another person by negligence in the performance of his statutory discretions and duties it could scarcely be contended that the principle of respondeat superior did not apply. The damages recoverable are shown in Attorney-General v. Valle-Jones 13. The informant is entitled to recover whether the police officer is a servant or not because the tortious act of the defendants brought about the situation whereby the constable became entitled to the benefits provided by statute.

1(1944) 68 C.L.R. 227. 2(1944) 68 C.L.R., at pp. 233-239. 3(1920) 2 K.B. 135. 4(1935) 2 K.B. 209. 5(1930) 2 K.B. 364. 6(1947) 332 U.S. 301 [91 Law. Ed. 7(1948) S.C.R. (Can.) 57. 8(1948) 2 K.B. 68. 9(1917) A.C. 38, at p. 51. 10(1939) I.R. 590. 11(1927) I.R. 62. 12(1906) 3 C.L.R. 969. 13(1935) 2 K.B. 209. 85 CLR 241

K. A. Ferguson K.C. (with him E. M. Martin), for the respondent. The action is an anomalous one. It is an exception to the rule that A cannot recover damages for injury to B which prevents B from performing his contract to A. The rule had an historical basis. The head of the household was deemed to have a proprietary interest in the members of his family, his apprentices and servants, and their services. The basis of the action was trespass to chattels, and loss of service was essential (Admiralty Commissioners v. S.S. Co. (LTD.). Amerika 1, Clerk and Lindsell on Torts, 10th ed. (1947-1950), p. 329). The head of the household could only have a proprietary interest in services personal to himself and over which he could exercise complete control-give orders and have them obeyed. Control is inherent in a proprietary interest. If the head of the household could not control the services he would not suffer any damage. It follows that the servant must have been performing delegated duties and exercising delegated authority. He must have been doing something for his master otherwise there was not any loss. The concept of property in services has long since disappeared. The relationship is now contractual. Had the law developed along logical lines the action would have disappeared as its very basis had disappeared. It is now an anomaly, contrary to recognized principles and resting solely on procedure. Though it has survived, it has done SO only in relation to the type of services to which it originally applied. The area of its application has not been increased.

A contract of service is not essential, de facto service is sufficient. But the de facto service being performed must be capable of being the subject of a personal contract of service. The basis of the decision in The Commonwealth v. Quince 2 is that (a) the services must be such as are performed under an ordinary contract of service, and (b) the services performed by the forces are not such services. One important difference is that a soldier in the execution of his duty is not performing delegated duties. The minority opinion in that case was that the degree of control provided a sufficient analogy to a contract of service 3. The element of control is absent from this case. The relationship between the Crown and the members of the police force is governed by common law and statute. A member of that force exercises common law and statutory rights, which cannot be exercized under the authority of any person but himself. He is a ministerial officer of the Crown exercising common law and statutory rights independent of control

1(1917) A.C., at pp. 44, 50, 60. 2(1944) 68 C.L.R. 227. 3(1944) 68 C.L.R., at pp. 238, 254, 85 CLR 242

(Police Regulation Act 1899-1947 (N.S.W.) Enever v. The King 1 Fisher v. Oldham Corporation 2 ). It is true that for disciplinary purposes, he, the member of the police force, must obey the orders of his superiors, and that at times he exercises delegated duties but those matters are incidental to his office, and are equally applicable to members of the forces. Co. (LTD.).

E. S. Miller K.C., in reply. If control is a necessary ingredient in this type of action, then that requirement is satisfied by the provisions of the Police Regulation Act 1899-1947, for example, SS. 4, 4A and 5 provide sanctions for the performance by a member of the police force of his duties according to law. Superintendents and inspectors are appointed under the Act to control subordinate officers.

Cur. adv. vult. The following written judgments were delivered :-

DIXON J. By the order under appeal the Supreme Court of New South Wales allowed a demurrer to an information in personam by the Attorney-General and entered judgment for the defendants.

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 3; Attorney-General v. Valle-Jones 4 Attorney-General v. Dublin

1(1906) 3 C.L.R., at pp. 975, 2(1930) 2 K.B., at pp. 371, 374. 3(1920) 2 K.B. 135. 4(1935) 2 K.B. 209. 85 CLR 243

United Tramways Co. (1896) Ltd. 1 and R. v. Richardson 2 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 Summer's opinion in Admiralty Commissioners v. S.S. Amerika 3 none of these payments would enter into the measure of damages and according to a dictum of Lord Parker in the same case 4 the payments on account of pension would not do SO. If Lord Sumner's opinion is right it may be a question whether the informa- tion 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 infor- mation 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 demurrer 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.

Unless we are to reconsider what the majority of the Court decided in The Commonwealth v. Quince 5 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. 6 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.

In my opinion we ought to follow and apply the decision in The Commonwealth v. Quince (5). This Court has adopted no very definite

1(1939) I.R. 590. 2(1948) S.C.R. (Can.) 57. 3(1917) A.C., at p. 61. 4(1917) A.C., at p. 42. 5(1944) 68 C.L.R. 227. 6(1944) 68 C.L.R., at pp. 245, 246. 85 CLR 244

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. 1 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 con- stitutional interpretation did not show it to be SQ and even if, Co. (LTD.). 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. 2 follow- ing Wilds v. Amalgamated Anthracite Collieries Ltd. 3, then challenged and subsequently reversed in Dom. Proc. 4.

But there appears to me to be no ground for reconsidering the decision in Quince's Case 5 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.

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.

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.

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.

1(1944) K.B. 718. 2(1947) 2 All E.R. 884. 3(1947) 1 All E.R. 551.

4(1948) 2 All E.R. 252. 5(1944) 68 C.L.R. 227. 85 CLR 245

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.

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 1. 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.

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, notwith- standing occasional dicta as to the need of a contract to continue serving. The judgment of Willes J. in Evans v. Walton 2 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.

1(1853) 2 El. &Bl. 216 [118 E.R. 2(1867) L.R. 2 C.P. 615, at pp. 621, 85 CLR 246

But clearly a master could recover in trespass for the loss of services without making out any contractual right to them. 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 Co. (LTD.).

rule formed the basis of the action for seduction. If the injury to the servant was committed with force but is the con- sequence 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 1 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.

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 &. 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.10.3f. 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

1(1833) 10 Bing. 112 [131 E.R. 848]. 85 CLR 247

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 1. 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 &." "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 West- minister 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 2, 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

1(1613) 1 Plow. 310, at p. 323 2(1853) 2 El. &Bl., at pp. 262- [75 E.R. 472, at p. 491]. 266 [118 E.R., at pp. 766, 767]. 85 CLR 248

of control that he might bring trespass, not because of the personal status of the servant.

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 Co. (LTD.).

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.

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

85 CLR 249

there are many public offices existing under statute and sometimes charter the occupants of which discharge functions belonging to them by law.

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.

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 in- volves 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 1 ) 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 2 ) 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 3 ) may sue in respect of the loss of the services of a mechanic.

1(1949) V.L.R. 211. 2(1951) 84 C.L.R. 140. 3(1946) 73 C.L.R. 70. 85 CLR 250

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 respon- sibility 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 Co. (LTD.). in that respect the Crown is not vicariously responsible (Baume V.

The Commonwealth 1 ). Nevertheless we have regarded him as a servant for whose libels the Crown was responsible in damages (Musgrave v. The Commonwealth 2 ).

Quince's Case 3 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 disable- ment 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.

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 4 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 respon- sibility 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 5 ). It is interesting to note that in imposing a liability upon the Crown for tort the Crown Proceedings

1(1906) 4 C.L.R. 97. 2(1937) 57 C.L.R. 514, at p. 548. 347-349, 351, 352 [143 E.R. 3(1944) 68 C.L.R. 227. 1148, at pp. 1162-1164]. 4(1863) 10 C.B.N.S. 310, at pp. 5(1939) 62 C.L.R. 660, at p. 675. 85 CLR 251

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 1 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 con- sidered grounds for denying the vicarious responsibility of the Crown for an officer's tortious acts.

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 move- ments, 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 authori- ties 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

1(1863) 16 C.B.N.S., at p. 352 [143 E.R., at p. 1164]. 85 CLR 252

stage of which is reported in Shaw Saville &Albion Ltd. v. The Com- monwealth 1 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 Common- wealth was responsible vicariously for the fault of the captain or of any other naval officer in the navigation of the ship.

The second reason given by Erle C.J. if it were sound would be Co. (LTD.). 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 disci- plined 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 2; Little v. The Commonwealth 3 ), 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 4 and Attorney-General v. Valle-Jones 5 were respec- tively based as incorrect.

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

1(1940) 66 C.L.R. 344. 2(1906) 3 C.L.R. 969. 3(1947) 75 C.L.R. 94, at p. 114. 4(1920) 2 K.B. 135. 5(1935) 2 K.B. 209. 85 CLR 253

California 1 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.

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 Co. (LTD.). 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.

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.

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.

But I do not think that we should reconsider the correctness of the decision to the contrary in Quince's Case 2. The proper course judicially is to follow and apply that decision. To do SO results in my opinion in the dismissal of the appeal.

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.

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

1(1947) 332 U.S. 301 [91 Law. Ed. 2(1944) 68 C.L.R. 227. 85 CLR 254

There is an averment that the injured policeman was a member of the police force of New South Wales but no averment ATTORNEY-

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 Co. (LTD.).

information seems to be the loss of the policeman's services, occas- ioned 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.

The demurrer raises the question whether, assuming the respon- dents 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 agree- ment 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

85 CLR 255

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 com- missioner. Rules for the general government and discipline of the Force may be made under S. 12 by the Executive Government of the State.

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 organ- ized 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.

In the case of Commonwealth v. Quince 1 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.

In the first place it was argued for the Attorney-General that Quince's Case (1) 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,

1(1944) 68 C.L.R. 227. 85 CLR 256

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 Co. (LTD.).

member of the police force of New South Wales are thereby assimil- ated 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 Regula- tion 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 1 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 (1) governs the present case.

Upon the assumption that the Court would arrive at that con- clusion a submission was made for the appellant that Quince's Case (1) 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 (1). 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

1(1944) 68 C.L.R. 227. 85 CLR 257

child; and still upon the basis that the child is in her father's service. Tindal C.J. said in Grinnell v. Wells 1: 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 2: Co. (LTD.).

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 3 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 4 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 5 about the action per quod servitium amisit contain the most authoritative account of it. Lord Sumner said 6 "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".

In Bradford Corporation v. Webster 7 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 8 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

1(1844) 7 Man. &G. 1033, at pp. 2(1825) 4 B. &C. 660 at p. 663 3(1841) 3 Man. &G. 88, at p. 91 [133 E.R. 1069 at p. 1070]. 4(1867) L.R. 2 C.P. 615, at p. 620. 1041, 1042 [135 E.R. 419, at p. 5(1917) A.C. 38. 423]. 6(1917) A.C., at p. 55. 7(1920) 2 K.B. 135. [107 E.R. 1206, at p. 1207]. 8(1920) 2 K.B., at pp. 135, 136. 85 CLR 258

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 Co. (LTD.). 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 1 "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 2 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.

The Bradford Corporation Case (2) was discussed by McCardie J. in Fisher v. Oldham Corporation 3. 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 4 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 com- mitted by him in the execution of his duty within its area. McCardie J. said that the Bradford Corporation Case (2) 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 5 the learned judge said, as to the propo- sition 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 (2) 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 6 and he observed that even "so slender a claim" such

1(1891) 1 Q.B. 594, at p. 596. 2(1920) 2 K.B. 135. 3(1930) 2 K.B. at pp. 374, 375. 4(1930) 2 K.B. 364. 5(1906) 3 C.L.R. 969. 6(1930) 2 K.B., at p. 375. 85 CLR 259

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 quasi- servant 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.

In the case of Attorney-General v. Valle-Jones 1, 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 2 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.

It must be remembered that Lord Sumner said in the case of Admiralty Commissioners v. S.S. Amerika 3, " 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

1(1935) 2 K.B., at p. 213. 2(1944) 68 C.L.R. 227. 3(1917) A.C., at p. 51. 85 CLR 260

the Attorney-General v. Valle-Jones 1 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 PERPETUAL

there were distinctions which explain why in the action brought Co. (LTD.).

by the Attorney-General against Valle-Jones, the substantial point which was doubted by Lord Sumner was allowed to go by default.

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 2 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 employ- ment 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

1(1935) 2 K.B. 209. 2(1944) 68 C.L.R. 227. 85 CLR 261

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 1 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 Co. (LTD.). 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 2 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 3 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 exten- sion 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.

Nothing said in argument has given me any reason to conclude that Quince's Case (1) 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.

1(1944) 68 C.L.R. 227. 2(1917) A.C. 38. 3(1930) 2 K.B. 364. 85 CLR 262

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.

WILLIAMS J. This is an appeal from an order of the Full Supreme Court of New South Wales that judgment on demurrer be entered Co. (LTD.).

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 (Super- annuation) 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 1 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.

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

1(1944) 68 C.L.R. 227. 85 CLR 263

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 therein until he has taken and sub- scribed 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

85 CLR 264

OF A. 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 Co. (LTD.).

commissioner or other person acting in his stead. Section 12 provides that the Governor may make rules for the general govern- ment 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, incom- petency, 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

85 CLR 265

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.

These short extracts from the Police Regulation Act and rules are sufficient, I think, to illustrate the general nature of the con- ditions of service in the police force of New South Wales. A police- man 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 1; Field v. Nott 2 ). 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. 3. 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 torces 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 4 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 5 ).

1(1906) 3 C.L.R. 969. 2(1939) 62 C.L.R. 660. 3(1916) 2 A.C. 556. 4(1930) 2 K.B., at p. 371. 5(1951) A.C. 507. 85 CLR 266

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 1. 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, Co. (LTD.).

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) 2 ).

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 incon- sistent with that expressed by the House of Lords in Owners of S.S. Raphael v. Brandy 3, 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 4; Berringer v. Great Eastern Railway Co. 5; Mankin v. Scala Theodrome Co. Ltd 6. In Robert Marys's Case 7

1(1944) 68 C.L.R. 227. 2(1949) 77 C.L.R. 493. 3(1911) A.C. 413. 4(1867) L.R. 2 C.P. 615. 895, at pp. 898, 899]. 5(1879) L.R. 4 C.P.D. 163. 6(1947) 1 K.B. 257. 7(1612) 9 Co. Rep. 111b [77 E.R. 85 CLR 267

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, &. 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

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 neces- sarily 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. 4,

1(1841) 3 Man. &G. 88 [133 E.R. (3) (1853) 2 El. &Bl. 216 [118 E.R. 2(1867) L.R. 2 C.P. 615. 4(1946) S.C. (H.L.) 24, at pp. 85 CLR 298

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 Co. (LTD.). 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 re- quirement 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 incum- bent 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 pro- tection 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 pur- poses of some branches of the law, as if they are necessarily definitive of the substance of that relation for all purposes.

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

85 CLR 299

his actual household. But he may need the aid of others, and, if so, those whose services he obtains become part of his ménage 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 1, 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 2 ).

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. 3 ).

It will be seen that three elements are involved first, the rela- tionship 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 con- tinues. The relationship may be voluntary and whether voluntary

1(1795) 1 Esp. 386 [170 E.R. 393]. 2(1922) 1 K.B. 166, at p. 170. 3(1944) 69 C.L.R. 227, at p. 233). 85 CLR 300

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. Co. (LTD.).

Noakes 1: "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. 2, 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 state- ment 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. 3. 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.

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,

1(1880) 6 Q.B.D., 530, at pp. 2(1947) A.C. 1, at p. 17. 3(1947) A.C. 1. 85 CLR 301

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. 1. 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.

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 2, "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 3-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,

1(1916) 2 A.C. 556. 2(1896) 1 Q.B. 116, at p. 118. 3(1896) 1 Q.B., at p. 119. 85 CLR 302

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.

The Supreme Court of the United States in United States V. Standard Oil Co. 1 drew a sharp distinction between " the Govern- Co. (LTD.). ment'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 2 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 3 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 4 "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 5 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 6 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.

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 7 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 8. The correctness of that decision having been challenged in this case,

1(1949) 332 U.S., at p. 313 2(1917) A.C., at p. 51. 3(1951) A.C., at p. 517. 4(1951) A.C., at p. 518. 5(1877) 2 C.P.D. 445, at p. 453. [91 Law. Ed., at pp. 2074, 2075]. 6(1911) A.C. 413. 7(1935) 2 K.B. 209. 8(1944) 68 C.L.R. 227. 85 CLR 303

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.

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 disciplined force in the service of the Crown (Fletcher v. Nott 1 ). 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.

The position of a police officer under provisions such as these has been examined by this Court in Enever v. The King 2, and Ryder v. Foley 3. 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 4 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

1(1938) 60 C.L.R. 55, at p. 77. 2(1906) 3 C.L.R. 969, 3(1906) 4 C.L.R. 422. 4(1896) 13 W.N. (N.S.W.) 49. 85 CLR 304

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 consider- ations seem to me sufficient in themselves to negative the existence of a master and servant relationship. Co. (LTD.).

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.

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 con- sequential non-liability of the Crown for acts done within the scope of his duties.

A decision which, if correct, is against this view was given by A. T. Lawrence J. in Bradford Corporation v. Webster 1 in which the learned Judge held that a constable appointed by a municipal corporation was a servant of the corporation, and that the corpor- ation 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 2 McCardie J. thought that the Bradford Corporation Case (1) 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

1(1920) 2 K.B. 135. 2(1930) 2 K.B., at p. 375. 85 CLR 305

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 (1) ought not to be accepted as a correct decision on the question of liability. The decision in Fisher v. Oldham Corporation (2) 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 (3) and contains a valuable discussion of the nature of constable's office. McCardie J. said (4) 'He is a servant of the State' and then explained the statement by the words " 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.

The Court was referred to the case of Receiver for the Metropolitan Police District v. Tatum (5), 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.

In my opinion the demurrer was rightly allowed, and the appeal should be dismissed.

Appeal dismissed. Solicitor for the appellant, F. P. McRae, Crown Solicitor for New South Wales.

Solicitors for the respondents, P. v. McCulloch &Buggy.

(I) (1920) 2 K.B. 135.

(4) (1930) 2 K.B., at p. 371. (2) (1930) 2 K.B. 364.

(5) (1948) 2 K.B. 68. (3) (1906) 3 C.L.R. 969