Commissioner for Railways (NSW) v Scott

[1959] HCA 29

HIGH COURT OF AUSTRALIA

Dixon C.J., McTiernan, Fullagar, Kitto, Taylor, Menzies and Windeyer JJ.

COMMISSIONER FOR RAILWAYS (N.S.W.) v. SCOTT

(1959) 102 CLR 392

1 July 1959

Master and Servant

Master and Servant—Action per quod servitium amisit—Scope of action—Injury to servant other than domestic or menial servant—Whether action lies—Nature of relationship between Commissioner for Railways and railway employee.

Decisions

July 1, 1959.
The following written judgments were delivered:-
DIXON C.J. In this appeal the Commissioner for Railways of New South Wales seeks to establish the liability to him in damages of a wrongdoer whose tortious act causes personal injury to a member of the railway service who in consequence is unable to perform his duties. (at p397)

2. An engine driver named Rogers suffered a breakdown after a level crossing accident had been averted, partly by his efforts. The responsibility for the situation has been held to rest with the defendant, the rider of a motor cycle who has been found negligent in attempting to cross before the oncoming train. (at p397)

3. Under s. 100B of the Government Railways Act 1912-1955 (N.S.W.) the engine driver was entitled while he was unable to perform his duties to receive not less than the salary of his classification and length of service and the cost of medical treatment. Section 100B so provides when the injury arises out of and in the course of the employment unless there has been serious and wilful misconduct. The purpose or characterization of the provision has been considered by this Court, which regarded it as possessing a double aspect, namely in one aspect a continuation of wages while the employee remained in the service of the Commissioner and in another aspect compensatory, that is to say during periods of disablement and when involving any excess payments: The Commissioner for Railways (N.S.W.) v. London (1951) 85 CLR 95, at pp 104, 109 . (at p397)

4. The amount is but small that the Commissioner was compelled to pay for periods of time when Rogers could not perform his duties, but the existence of s. 100B makes it important for the Commissioner to ascertain whether he may recover over from a wrongdoer whose wrongful act has occasioned the loss of the services of an employee to whom payments must go on under the provision. (at p397)

5. Uncorrected I am afraid that I should have said that the Commissioner might recover damages, appropriately measured, from the wrongdoer in an action per quod servitium amisit. But I think I should accept the position that the right of action commonly referred to by these four words of Latin pleading does not extend beyond the case of a menial or domestic servant. It appears to be the proper conclusion to be drawn from Receiver for the Metropolitan Police District v. Croydon Corporation (1957) 2 QB 154, at p 162 ; Inland Revenue Commissioners v. Hambrook (1956) 2 QB 641 ; Lee v. Sheard (1956) 1 QB 192 , cases which, if they go further than Attorney-General for New South Wales v. Perpetual Trustee Co. (Ltd.) (1955) AC 457; (1955) 92 CLR 113 , depend not a little on that decision. It is the view of the cases adopted by the editor of the title Master and Servant in Halsbury's Laws of England, 3rd ed. Vol. 25. The material part of the text of the two earlier editions has been reformed to read thus: - "A master may recover damages in an action per quod servitium amisit for loss of services attributable to personal injuries occasioned by the wrongful act of a third party to members of the family who render him services in the household and to domestic servants; but the action does not lie in respect of the loss of the services of other categories of servants." Halsbury's Laws of England, 3rd ed. vol. 25, p. 558; contrast 2nd ed. vol. 22, pp. 251-252 (as at 15th July 1936) and 1st ed. vol. 20 p. 275 (as at 1st December 1911). The same kind of limitation has been adopted under Roman Dutch law in South Africa, if and so far as an analogous cause of action survives there: Union Government v. Ocean Accident and Guarantee Corporation (1956) 1 Sth Af LR 577 . It is not however a view of the common law remedy which obtained, I believe, in the nineteenth century. Indeed before the twentieth century the only trace of it which I have seen is in the statement of Eyre C.J. at the close of the eighteenth century in Taylor v. Neri (1795) 1 Esp 386 (170 ER 393) . The report says that the declaration stated that the plaintiff being the manager of the Opera-house had engaged one Breda as a public singer during the season at a salary; that the defendant had assulted and beat the said Breda; per quod the plaintiff lost his services as a public performer. "On the circumstances of this case being opened, Eyre, Chief Justice, expressed a doubt whether the action was maintainable or not. His Lordship said, that he did not think the Court had ever gone further than the case of a menial servant; for that if a daughter had left the service of her father, no action per quod servitium amisit would lie for debauching her." (1795) 1 Esp 386 (170 ER 393) The Chief Justice non-suited the plaintiff, being of opinion that Breda was not a servant at all. It is possible that his Lordship was not emphasizing the supposed ingredient in the cause of action which the word menial would express. But the interesting point about the case is to find the source of the view of the cause of action which the use of the word appears to involve. I can find nothing to support the qualification and I have looked at most of the books of entries and at the earlier abridgments and the books of pleading of a later time. Perhaps I may mention Rastell fos. 613, 662, 675 and the seventeenth century, Aston's Entries 502, 516, 517, and Brown's Entries 260 and Clift's Entries where perhaps more positive evidence appears. Under 9 Wm. III (p. 733, para. 53) there is a count in trespass upon servants of the plaintiffs "dum in serviciis suis retenti et recepti fuerunt ad deserviendum ipsis (naming the plaintiffs) in quadam navi ipsorum". The count alleged the loss of services in the words" per quod iidem (the plaintiffs) servitium serventium suorum praedictorum in nave praedicta per magnum tempus perdiderunt et amiserunt." No doubt the examination which Mr. Gareth H. Jones made of the material before preparing his paper Per Quod Servitium Amisit, (1958) 74 LQR 39, particularly at pp. 53 - 55, has been more extensive and more expert than mine, and I am glad that he confirms the result. I am bound to say that I am not confident of the meaning of a passage quoted by him from John Clayton's "Reports and Pleas of Assises at Yorke", a passage giving an account of the case before Serjeant Thorpe or Mr. Baron Thorpe as he became (see Foss Dictionary of Judges, p. 659) at the assizes at York in the time of the Commonwealth, but Mr. Jones appears to treat it as suggesting nothing to the contrary. If the references collected in Wentworth on Pleading (1799) Vol 9, Trespass, at p vi of the Index to Leading Titles, Civil Division, under the heading "Assaulting etc. Servants - apprentices - daughters etc." are looked at it will be found that they disclose no limitation to domestics or menials. I would venture to think that every consideration of history appears to tell against it. (at p399)

6. The remedy of trespass per quod servitium amisit has, as it seems to me, been judicially limited in its scope under the influence of two conceptions; and both conceptions touch its origins. One is that it belongs to a state of society that has passed and possesses no relevance to our times. The other is that when the scope of the remedy was settled it was natural or inevitable that it should be restricted to the household. In examining any of our legal institutions which can be traced back in changing forms into the indefinite past it is always possible to fix on a period remote in time and thought from our own and bring into contrast considerations of then and now. It is however a contrast which seldom has any relevance in a legal system the growth of which has been gradual and has proceeded in no small degree by reasoning from accepted notions about remedies and rights to rules thus evolved to govern new or changed situations to which an ever developing social order gives rise. The resources of the law for superseding or avoiding the obsolescent have for the most part proved sufficient, even if occasionally theoretical survivals have been exhumed to the discredit perhaps of the system, as in King v. Williams (1824) 2 B &C 538 (107 ER 483) (compurgation) and Ashford v. Thornton (1818) 1 B and Ald 405, at p 457 (106 ER 149, at p 168) (appeal of murder and battle). It may be that we owe the form of action now in question to notions developing out of a patriarchal state of society which came with Indo-European speech and culture. But that tells you nothing material. It may be that it arose from the protection which early law is said to have given to the area of personal authority and control of the patriarchal head of the "household" and it may be that these ideas were transferred to an agricultural society. But in that, if one may express it according to the Greek analogy, there is no reason for distinguishing between the case of the (Greek word omitted) and that of the (Greek word omitted) even if the latter were a (Greek word omitted). (at p400)

7. Once a consideration of medieval times is reached, not only the history of the remedy, but the known facts as to the course of social changes would almost seem to make it evident that the remedy could not be confined to the loss of a domestic servant. Trespass per quod servitium amisit lay for a nativus or villein as for a serviens or servant. Serviens is the word used in all the Latin precedents and it is unqualified. To read the title under this word in Spelman's Glossary is to dispel any idea that it possessed a narrow, still less a lowly denotation. As to social changes, the commutation of villein services, the effects of the plague, the peasants' revolt of 1381 and the period by no means short when the labour force was found inadequate for the demands upon it, provide a combination of factors all telling against a limitation of remedy to domestic service. Further, there is the apparently undeniable fact that the action on the case for procuring a servant to leave his employment, whatever contribution the Statute of Labourers may have made to that cause of action, extended to journeymen and other servants who could not be called menial or domestic. False etymology sometimes contributes to the acceptance of conceptions or interpretations which are not well founded and it may be that this has occurred over the restriction of the cause of action in trespass per quod servitium amisit. In the discussion of the question whether the action is so restricted the notion that "menial" is derived from "intra moenia" seems to have produced some effect. The word in fact comes from the obsolete English word meini: see per Kitto J. in Attorney-General for N.S.W. v. Perpetual Trustee Co. (Ltd.) (1952) 85 CLR 237, at p 299 . The meaning of that word as the Oxford Dictionary (s.v. meini) shows, extended from family or household to a body of retainers, dependants or followers. It is the word which Chaucer uses in the Nonne Prest his Tale when he says "Jakke Straw and his meyne ne maden schoutes never half so schrille when that they wolden eny Flemyng kille". But if I am right in thinking that as a matter of history this sort of trespass per quod was never restricted before the twentieth century to menial servants, it hardly matters what the word menial would have meant had it been so. I do not think that Blackstone meant to say that the remedy in trespass per quod servitium amisit was restricted to menial or domestic service. All he says about the remedy is "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 for the loss of his service; and this loss must be proved upon the trial": Blackstone's Commentaries, 5th ed. (1773) Bk 1, p 429 It is interesting to notice that Blackstone cites only the statement in Coke's report of Robert Marys's Case (1612) 9 Co Rep 111b (77 ER 895) and also that he brings out very neatly in untechnical language the point there made that it is the consequence covered by the per quod that makes the trespass to the servant actionable by the master: the point being the same as that made in Robert Marys's Case (1612) 9 Co Rep 111b (77 ER 895) , that the commoner could not bring trespass against the stranger turning his cattle on the common save by the per quod proficuum communiae suae amisit. It was not because the wrong was committed vi et armis and contra pacem that trespass lay but because the master suffered the consequent loss of service etc. that he could bring it. Case however was necessarily the form of action for enticing away or harbouring a servant or apprentice. A later generation of pleaders rationalized the result by saying that when the law does not necessarily imply that the plaintiff sustained damage by the act complained of it is essential to the validity of the declaration that the resulting damage be shown with particularity; as in an action by a master for "beating his servant". Chitty's Pleading, 7th ed. (1844) vol. 1, p. 411: see too pp. 69, 150, 412. The classification of servants which Blackstone makes, some pages before, is directed rather to the distinction made important by the Elizabethan reforms of the Statutes of Labourers; 5 Eliz. ch. 4 in particular: see Holdsworth, A History of English Law, 2nd ed. (1937) vol. 4, pp. 341, 342. The significance can readily be seen from the title "servants" in Jacob's Law Dictionary. (at p402)

8. To turn to the evidence of the precedents of pleading and of the reports of cases, it would indeed be astonishing if during the seventeenth, eighteenth and nineteenth centuries the counts in use had all been demurrable. It would be tedious to go through them all. But it may be as well to say that the precedent given by Lilly towards the close of the eighteenth century goes back to a case heard in the last quarter of the seventeenth century: Berkly v. Mann, Lilly's Entries (1791) vol. II, 439. In the next century the precedent in Chitty's Pleading, 7th ed. (1844) vol. 2, p. 653 places no qualification on the word servant. Neither do those cited in Bullen and Leake, Precedents of Pleadings, 3rd ed. (1868) p. 360, limit the allegation of "servant" and "service" by restrictive words. In case after case the same thing can be observed and some have been noticed in which allegations in the pleadings and facts in the evidence are positively inconsistent with the domestic character of the servant: see Randle v. Dean (1700) 2 Lutw 1496; (125 ER 824) ; servientes laborantes et negotiantes in licitis negotiis ipsius (querentis). Hodsoll v. Stallebrass (1840) 11 Ad &El 301 (113 ER 429) ; Martinez v. Gerber (1841) 3 Man &G 88, at p 89 (133 ER 1069) ; Alton v. Midland Railway Co. (1865) 19 CB (NS) 212, at p 213 (144 ER 768, at p 769) and see per Willes J. (1865) 19 CB (NS), at p 239 (144 ER, at p 779) . As to the text books of the nineteenth and early twentieth centuries it is enough to cite Broom's Commentaries, 6th ed. (1880), p. 848; Smith's Law of Master and Servant, (1852) ch. III (2); Macdonell on The Law of Master and Servant, 2nd ed. (1908) ch. 19; Dicey on Parties to an Action (1870) p. 326; Sir John Miles in Jenks' Digest of English Civil Law, 2nd ed. (1921) vol. 1, p. 476, para. 959. I think that it is correct to say that at no time in its long history does the cause of action appear to have been the subject of anything but a slender stream of authority, whether in the year books, the abridgments or the law reports. It may be because its elements have been simple enough to escape much legal discussion. But another and not unreasonable conjecture is that it is only in the more exceptional periods of our economic history that physical injury incapacitating a servant has spelled real actionable loss to the master. For the most part in the past the employee might be replaced and the employer was involved in neither expense nor other monetary loss. Probably in the fourteenth century the considerations giving importance to the action on the case for the loss of the servant gave importance to the action of trespass per quod servitium amisit. Perhaps the economics of other periods of time have for brief intervals given it the same importance. Now as I see it the fact that many employers have in various ways become chargeable when an employee suffers an incapacitating physical injury has given greater importance to the action. The question whether the loss which is so occasioned to the employer by a wrongdoer who injures the employee is recoverable has thus become of serious economic importance. When the cause of action has been condemned as out of keeping with modern social ideas and incongruous with the principles of our law as now understood, it seems likely that the question has been looked at as if it were sought to fit the modern relation of employer and employee into some archaic category as, for example, that of the feudal relation of dominus et nativus. To me this seems far from the truth. It would, I think, rather strike my mind, had the continued existence of the cause of action in its nineteenth century sense been conceded, that because by statute and otherwise some of the real loss resulting from a wrong to the employee was placed on the employer, a remedy based on recognizable principle had ceased to be of little economic significance and had come to provide a just redress, at all events so far as it might reach. By the qualification "so far as it might reach" I refer to the measure of damages. In the present case that is perhaps not open to question. For the wages of the engine driver Rogers went on through for the time being his services were lost. But many of the charges which nowadays this or that employer must bear in case of his employee's sustaining an incapacitating injury are of a different description. In the case of trespass per quod uxoris consortium amisit the per quod might in terms allege loss in respect of much else besides consortium and I have no doubt it is a mistake to confine the remedy to what nowadays may be technically subsumed under that word. But I have seen nothing going beyond servitium in the case of servants and, were the remedy allowable, perhaps questions might arise of what was covered by the measure of damages. A discussion by Fullagar J. of the question of damages flowing from the supposed tort will be found in Attorney-General of N.S.W. v. Perpetual Trustee Co. (Ltd.) (1952) 85 CLR, at pp 289-293 . (at p403)

9. As I have said, the application of s. 100B to the facts of this case does not seem to open such a question; but at the same time it was because of its possible relevance to such a matter that I pointed out above the double aspect this Court attributed to that provision. (at p404)

10. The reason why the remedy has been invoked of late has not, one may be sure, escaped the notice of the courts. Indeed in his judgment in Inland Revenue Commissioners v. Hambrook (1956) 2 QB 641 , Lord Goddard C.J. suggested that the Commissioners might give sick pay to an injured member of the staff on the terms that it was to be repaid if he recovered what he would have earned but for the accident as special damage (1956) 2 QB, at p 657 . This, if I may respectfully suggest it, appears to recognize that there is a defect of remedy, the action per quod etc. being unavailable, and to suggest a device for recovery in effect in the name of the employee. It was substantially the device that was adopted with success by the Navy in Blundell v. Musgrave (1956) 96 CLR 73 . Of this question, including the possible place that might have been taken in it of the action of trespass per quod etc., there is an able discussion by Mr. Ross Parsons - Damages in Actions for Personal Injury (1957) 30 ALJ 618. I do not regard Wynyard Investments Pty. Ltd. v. Commissioner for Railways (N.S.W.) (1955) 93 CLR 376 as meaning or implying that the Commissioner for Railways is not the juristic person with whom the engine driver stands in legal relations and I am quite unable to accept the argument that the relation, notwithstanding that it is regulated in many aspects by the Act, is not that of master and servant. I imagine that, for example, tools entrusted to him are in his custody and not in his possession and that the "property" in, let us say, a spanner taken larcenously from his hands might properly be laid in the Commissioner and could not be laid in him. I should have thought that if an engine driver dishonestly appropriated a spanner to his own use he would be guilty of larceny as a servant. It would hardly be disputed that his negligence in the course of his duty, if it cause damage to strangers or to his fellow workmen, imposes a vicarious liability upon the Commissioner. But as he certainly is not the Commissioner's domestic servant none of this matters for the purpose of my decision. Perhaps I should conclude by saying why I am not prepared to follow the course adopted by Owen J. It is that I feel that, were I to do so, I should be reverting in too many respects to the conceptions embodied in or perhaps I should say governing the reasons I gave in Attorney-General for N.S.W. v. Perpetual Trustees Co. (Ltd.) (1952) 85 CLR 237 . (at p404)

11. I think that the proper course to adopt is to dismiss the appeal. (at p404)

McTIERNAN J. I am of opinion that this appeal should be dismissed. (at p405)

2. My respectful view is that the Privy Council, in Attorney-General for New South Wales v. Perpetual Trustee Co. (Ltd.) (1955) AC, at p 485; (1955) 92 CLR, at p 125 affirmed without any qualification the statement Eyre C.J., made in Taylor v. Neri (1795) 1 Esp 386 (170 ER 393) , that "he did not think that the court had ever gone further than the case of a menial servant" (1795) 1 Esp, at p 386 (170 ER 393) . This statement of Eyre C.J. seems to me to mean that the action per quod servitium amisit did not extend to the loss of the service of any servant who was not a menial servant. (at p405)

3. When I wrote my reasons in the Perpetual Trustee Company's Case (1952) 85 CLR 237 I thought that Martinez v. Gerber (1841) 3 Man &G 88 (133 ER 1069) was a good precedent for holding that the action extended to the loss of the service of a servant who was not of the household of the plaintiff; although I held both in that case and in The Commonwealth v. Quince (1944) 68 CLR 227 that the action did not lie. It appears that the Privy Council did not regard Martinez v. Gerber (1841) 3 Man &G 88 (133 ER 1069) as an authority for extending the limits which the statement of Eyre C.J. sets to the action. Indeed, Denning L.J. (as he then was), in Hambrook's Case (1956) 2 QB 641 , explained Martinez v. Gerber (1841) 3 Man &G 88 (133 ER 1069) on a basis reconciling it entirely with the statement of Eyre C.J. (at p405)

4. Who are menial servants for the purposes of the action should, I feel, be determined by the criteria stated by Blackstone. He wrote that servants are called menial servants "from being intra moenia or domestics". Apprentices who lived intra moenia were, accordingly, within the scope of the action. Blackstone wrote that the principle of the action is "the property that he (the master) has in the service of his domestics". This service was a quasi status. The Privy Council said in the Perpetual Trustee Co.'s Case (1955) AC 457; (1955) 92 CLR 113 that such status "lay in the realm of domestic relations" (1955) AC, at p 490; (1955) 92 CLR, at p 130 . (at p405)

5. I am of opinion that it is right to draw from the reasons of the Privy Council the conclusion that Denning L.J. (as he then was) drew in Hambrook's Case (1956) 2 QB 641 . His Lordship said: "But in my opinion, the action does not lie whenever the relationship of master and servant exists. It only lies when the servant can properly be regarded as a member of the master's household, that is, as part of the family" (1956) 2 QB, at p 666 . (at p405)

6. It may be conceded that the Commissioner for Railways is not because of anything inherent in his status debarred from bringing this action, and that there existed between him and the engine driver, whom the case concerns, a master-servant relationship. (at p406)

7. The railway service which the Commissioner for Railways carries on is a "government service" (McVicar v. Commissioner for Railways (N.S.W.) (1951) 83 CLR 521, at p 529 ; Wynyard Investments Pty. Ltd. v. Commissioner for Railways (N.S.W.) (1955) 93 CLR, at p 385 ). The engine driver was appointed under s. 70 of the Government Railways Act 1912 as amended. The power under which he was appointed is a power to appoint or employ "officers to assist in the execution of this Act". The word "officer" covers "servant" (s. 3(g)). (at p406)

8. The question upon which the case turns is not whether the driving of an engine in the railway service is in common parlance a menial occupation. Clearly it is not. The question is whether the engine driver, whom this action concerns, was for the purposes of the action per quod servitium amisit a menial servant. I think that he was not a servant of that description because his service was not in "the realm of domestic relations". The action per quod servitium amisit, therefore, does not extend to the loss of his services caused by the tortious act of the respondent resulting in the engine driver's incapacitation for work. (at p406)

FULLAGAR J. This case is, in my opinion, covered in principle by the decisions of the Privy Council in Attorney-General for New South Wales v. Perpetual Trustee Co. (Ltd.) (1955) AC 457; (1955) 92 CLR 113 and of the Court of Appeal in Inland Revenue Commissioners v. Hambrook (1956) 2 QB 641 and Receiver for the Metropolitan Police District v. Croydon Corporation (1957) 2 QB 154 . (at p406)

2. There is little that I wish to add to what I said in the Attorney-General for N.S.W. v. Perpetual Trustee Co. (Ltd.) (1952) 85 CLR, at pp 286-288 when that case was before this Court. I thought myself that the action for injuria per quod actor servitium servientis amisit was so anomalous and so inappropriate to present-day conditions that the best course would be to reject it altogether, and to say that cessante ratione legis cessat lex, the ratio legis being a proprietary or quasi-proprietary right which is altogether alien to modern conceptions. Short of such a rejection, the view which I would take is expressed in the words of Parker L.J. (as he then was) in Hambrook's Case (1956) 2 QB 641 . That view is also in general accord with the judgment of Denning L.J. in the same case. What Parker L.J. said was:-" . . . it would not be in accord with modern notions or with the realities of human relationships today (to use Lord Simonds' words in the New South Wales Case (1955) AC 457 ) to extend the action to the loss of services of a person whose relationship to his master is wholly different in kind from that to which the action was originally applied or to which it has been extended by binding or long recognized authority." (1956) 2 QB, at p 672 . (at p407)

3. That to allow the recovery of damages in such a case as the present would involve an anomaly is obvious, and is not, I think, denied. In Quince's Case (1944) 68 CLR 227 Rich J. said:- " . . . the mere fact that the injury prevents a third party from getting a benefit from the person injured which, but for the injury, he would have obtained does not invest the third party with a right of action against the wrongdoer" (1944) 68 CLR, at p 240 . That is the general rule of the common law. It is, in my opinion, a salutary and just rule, and I would quote again the passage which I quoted before (1952) 85 CLR, at p 286 from the judgment of Lord Kinloch in Allan v. Barclay (1864) 2 M (SC) 873 . His Lordship said:- "The personal injuries of the individual himself will be properly held to have been in the contemplation of the wrongdoer. But he cannot be held bound to have surmised the secondary injuries done to all holding relations with the individual, whether that of a master or any other." (1864) 2 M (SC), at p 874 . A grave inroad is made upon it if we expand the scope of the old action for loss of service to include such a case as Quince's Case (1944) 68 CLR 227 or the New South Wales Case (1955) AC 457; (1955) 92 CLR 113 or Hambrook's Case (1956) 2 QB 641 or the present case. If we are to allow the remedy in such a case, why should we deny it to a servant who has lost employment through injury to his master, or to an independent contractor with the injured person, or to a partner of the injured person, or to a company whose director is injured, or to an insurer which has had to make payments under an accident policy to the injured person, or to a government which pays him an invalid pension, or to the Commissioner of Taxation who receives less income tax from him because his earnings are reduced? Denning L.J. (as he then was) did indeed suggest in Lee v. Sheard (1956) 1 QB 192, at p 196 that a partner of the injured person would be able to recover damages for loss actually sustained by him, but this was obiter, and in Hambrook's Case (1956) 2 QB 641 a different opinion is involved in the actual decision of his Lordship. I am, of course, aware that there are anomalies in our law anyhow, but that is not to say that they are ornaments of the fabric, or that their number should be unnecessarily increased. (at p408)

4. Reference was made in Hambrook's Case (1956) 2 QB, at pp 657, 669, 673 to the matter of contributory negligence. It was admitted in that case that the injured servant had been one-third, and the defendant two-thirds, to blame for the accident. The apportionment legislation, which is in force in England and in New South Wales, could not be applied in an action by the master of the injured servant, and there would seem to be no answer to the argument for the Commissioners in Hambrook's Case (1956) 2 QB 641 that contributory negligence afforded no defence in such an action. I would respectfully agree with Parker L.J. (as he then was) that here is "yet another reason for confining this class of action within the narrowest possible limits" (1956) 2 QB, at p 673 . (at p408)

5. For the rest, I propose only to advert again briefly to the subject of damages, to which I gave some attention in the New South Wales Case (1952) 85 CLR, at pp 289 et seq , and which I have further considered. (at p408)

6. Medical and hospital and nursing expenses incurred in consequence of injuries inflicted by a negligent defendant are, in my opinion, recoverable from that defendant by any person who is under an obligation, contractual or otherwise, to pay them. That person may be the master of the injured person, but, if so, he recovers those expenses as damages not because the injured person is his servant, but because their being incurred is the natural and probable consequence of the defendant's negligence, and he must indemnify whoever has to pay them - the injured person himself or any other person. It would seem that in some cases such expenses will be recoverable even by a plaintiff who has not been under an actual legal obligation to pay them: Blundell v. Musgrave (1956) 96 CLR 73 , the majority opinion in which accords with the view of Lord Goddard C.J. in Hambrook's Case (1956) 2 QB, at pp 656, 657 . But the point is that an action by a third party to recover such damages in no way depends on any relation of master and servant as such, and an action to recover them is not an action for a wrongful act per quod servitium amisit. (at p408)

7. In a true action for a wrongful act per quod servitium amisit, the measure of damages must, I think, be the pecuniary loss actually sustained through the loss of the services of the servant. Wages paid to the servant during incapacity under a contract or a statute do not necessarily represent that loss. Nor would I think (although Denning L.J. and Parker L.J. in Hambrook's Case (1956) 2 QB, at pp 667, 672 were inclined to the contrary opinion) that wages paid to the injured servant afforded even prima facie evidence of the loss sustained by the master. This is the view expressed by Kellock J. in R. v. Richardson (1948) Can SCR 57, at pp 71, 72 in a judgment which favourably impressed their Lordships in the New South Wales Case (1955) AC, at p 488; (1955) 92 CLR, at p 128 . It may be that wages paid to a person employed in the injured person's place might afford such prima facie evidence: cf. Flemington v. Smithers (1826) 2 Car &P 292, at pp 292, 293 (172 ER 131, at p 132) . But wages paid to the injured person himself are paid not because of the injury to the servant but because of the antecedent obligation to pay them. The same considerations apply, of course, to sick pay and pensions. The case is, in a sense, the converse of Bradburn v. Great Western Railway Co. (1874) LR 10 Ex 1 . As Lord Sumner said in Admiralty Commissioners v. S.S. Amerika (1917) AC 38 , "Just as the damages recoverable by an injured man cannot be reduced by the fact that he has effected and recovered upon an accident policy (Bradburn v. Great Western Railway Co. (1874) LR 10 Ex 1 ), and those recovered under Lord Campbell's Act are not affected by the fact that his life was insured, so conversely a master cannot count as part of his damage by the loss of his employee's services sums which he has to pay because his contract of employment binds him to pay wages to the servant while alive and a pension to his widow when he is dead." (1917) AC, at p 61 . (at p409)

8. The above considerations suggest to my mind the possibility that the plaintiff in Quince's Case (1944) 68 CLR 227 ought to have recovered the sum of 286 pounds 2s. 1d. which represented the cost of medical and hospital treatment provided by it for the injured man. Quoad hoc the action was not a per quod servitium amisit action. (It is to be noted that even the dissentient Justices (Latham C.J. and Williams J.) did not think that the plaintiff was entitled to recover in respect of the pension paid). But the same considerations also serve to show that the plaintiffs in the New South Wales Case (1955) AC 457; (1955) 92 CLR 113 and in the present case have really been seeking a twofold extension of the old action. They have sought not only to extend the old notion of servitium, but to recover by way of damages disbursements which could not have been recovered as such in the old action. (at p409)

9. My own view has always been that the old action did not depend at all on the existence of the relation of master and servant as we know it today. It depended on the de facto rendering of services. On the one hand, it would be available in many cases where no one would say that the relation of master and servant existed. On the other hand, I do not think it ever occurred to anyone until very recently that it should be available in every case where the de jure relation of master and servant existed. When all is said and done, it does seem, from a practical point of view, a little absurd that a huge industrial organization like the New South Wales Government Railways, employing many thousands of persons, should claim that it has suffered damage to the extent of 149 pounds because it has lost the services of an engine driver who is off duty for a week or two. Such contingencies have, of course, to be met almost every day. They are met by adjustments of schedules or of rosters and in various other ways, and I should suppose it to be a matter of practical impossibility in most cases to say whether there has been a net loss or a net gain. (at p410)

10. I regard the recent English decisions as meaning, for practical purposes, that an action does not to-day lie at the suit of a master for a wrong done to his servant whereby he has been disappointed in his expectation of the continuance of that servant's services. If in any case such an action does lie, it is the value of that expectation that must provide the measure of damages. (at p410)

11. If I had thought the present action otherwise maintainable, I should have thought that the services being rendered de facto by the injured man should be regarded as being rendered to the Commissioner for Railways, so as to make him the proper plaintiff. (at p410)

12. The appeal should, in my opinion, be dismissed. (at p410)

KITTO J. The appellant sued the respondent in a District Court for damages, alleging that the defendant by negligence had caused injuries to a train driver employed in the railway service under the provisions of the Government Railways Act 1912-1952 (N.S.W.), and that through those injuries the appellant had lost the services of the driver over a period of time. (at p410)

2. The District Court Judge found for the appellant and awarded him damages. The respondent appealed to the Full Court of the Supreme Court of New South Wales upon grounds which raised only the question whether there was such a relationship between the appellant and the driver at the time the injuries arose as would support the action per quod servitium amisit. The Full Court by a majority allowed the appeal, and it is from that Court's order that the appeal to this Court is brought by special leave. (at p410)

3. As the notice of appeal to the Full Court did not raise any question as to the measure of damages, no such question is before us and I need not consider that aspect of the case. It is beyond controversy that the action per quod is confined at least to cases in which the relationship between the plaintiff and the injured person was that of master and servant in the sense in which those terms are used in the common law. The respondent, however, asserts that it is still more narrowly confined, so that it is available in respect only of the services of a menial or domestic servant. If that be so the respondent must succeed, for it can hardly be suggested that the driver of a railway locomotive is a menial or domestic servant. Equally, the respondent must succeed if a consideration of the provisions of the Government Railways Act as to persons in the railway service leads to the conclusion that such a person is not a servant of the plaintiff at all, in the common law sense of the term. Each of these grounds is relied upon as an answer to this appeal. (at p411)

4. The use of the words "menial" and "domestic" to describe members of a class of servants differentiated for legal purposes from other servants is quite old. The distinction has been drawn by statutes for a very long time, as may be seen from such cases as Toms v. Hammond (1733) Barnes 370 (94 ER 959) ; Masters v. Manby (1757) 1 Burr 401 (97 ER 370) ; Cameron v. Royal London Ophthalmic Hospital (1941) 1 KB 350 , and other cases there cited. The common law recognized it for a particular purpose and for a reason relevant to that purpose. The purpose was the fixing of the proper period of notice to be given by either side for the determination of the employment in the absence of specific agreement on the point. In cases of menial or domestic servants the period which came to be regarded as sufficient was one month, whereas in other cases it was twelve months; and the reason was that in the former the contracts for service "bring the parties into such close proximity and frequency of intercourse - valuable if mutually agreeable, but intolerably annoying should it be otherwise - that it is highly desirable that either party should be at liberty to put an end to them if so minded": per Erle C.J., in Nicoll v. Greaves (1864) 17 CB (NS) 27, at p 34 (144 ER 11, at p 14) . But it is difficult to see any distinguishing characteristic of menial or domestic service which makes the action per quod more appropriate to that grade of service than to any other. I am not aware of its ever having been said that servitium does not extend beyond domestic service. And it is a fact of no little significance that although throughout the nineteenth century the courts can be seen in the reports applying the distinction from time to time in cases as to termination of employment (see the cases cited in Halsbury's Laws of England, 2nd ed. vol. 22, pars. 198, 199, pp. 118, 119), there seems to be no instance in that century of its being regarded as of importance, or of its being so much as mentioned, in connexion with actions per quod. In fact, until very recently I believe that it would have been true to say that the history of the law might be searched in vain for any reference to the distinction in relation to per quod actions, beyond three instances which all occurred in the last few years of the eighteeth century. First, in 1787 a pleader, in declaring in a parent's action per quod for loss of his daughter's services, described the daughter as a menial servant: Bennett v. Allcott (1787) 2 TR 166 (100 ER 90) . Whether this was a necessary allegation or surplusage there is nothing in the report to say. Secondly, in 1791, Lord Kenyon, in order to give point to the proposition that " . . . though a degree of the relation of master and servant must subsist, yet a very slight relation is sufficient" (1791) Peake 77 (170 ER 85) , mentioned the case of a parent maintaining an action in respect of his daughter " . . . on the supposed relation of master and servant, though everyone must know that such a child cannot be treated as a menial servant": Fores v. Wilson (1791) Peake 77, at p 78 (170 ER 85) It would be going a long way, however, to read these words as meaning that if a daughter, though a servant, were of higher degree than a menial servant, that fact would have defeated the parent's right of action. Finally, in 1795, if Espinasse is to be believed, Eyre C.J. said that he did not think the Court had ever gone further (in allowing a per quod action) than the case of a menial servant; but when it came to judgment he rested his decision on the broader ground that the person who had been injured by the defendant "was not a servant at all": Taylor v. Neri (1795) 1 Esp 386, at p 387 (170 ER 393, at p 394) . Even if taken at face value, this seems a somewhat rickety foundation for a conclusion that the common law gave the action per quod in respect of menial or domestic servants only; and whether it should be treated as persuasive at all is a question upon which one may be forgiven for recalling the words of Lord Denman in Small v. Nairne (1849) 13 QB 840 (116 ER 1484) . "I am tempted to remark, for the benefit of the profession, that Espinasse's Reports, in days nearer their own time, when their want of accuracy was better known than it is now, were never quoted without doubt and hesitation; and a special reason was often given as an apology for citing that particular case. Now they are often cited as if counsel thought them of equal authority with Lord Coke's Reports." (1849) 13 QB, at p 844 (116 ER, at p 1486) . (at p412)

5. Lord Coke, as it happens, had spoken of the action per quod servitium amisit without any suggestion that it was or might be more narrowly circumscribed than by the bounds of the relation of master and servant: Robert Marys's Case (1612) 9 Co Rep 111b, 113a (77 ER 895, 898, 899) ; and in this he seems, so far as I can discover, to have been followed by every judge who has dealt with the topic up to 1956 - that is, unless Eyre C.J. said what Espinasse attributed to him. Indeed, as late as November 1955, the Court of Appeal, in a judgment delivered by Denning L.J. (as he then was) and assented to by Hodson and Morris L.JJ., expressed the opinion that any relation of master and servant would suffice for the action: Lee v. Sheard (1956) 1 QB 192 . In that case, a Mr. Lee, who was a shareholder in a company and worked in the company's business, sued for damages for personal injuries and claimed to include as part of his damages a loss consisting in the diminution of his dividends from the company, the diminution being attributable to a falling off in the company's profits by reason of his inability to perform his accustomed work in its business. In the course of a judgment upholding his claim in respect of that loss, Denning L.J. said (1956) 1 QB, at pp 195, 196 : "If Mr. Lee had been a servant of the company, the company might have recovered damages in an action per quod servitium amisit, and then, of course, Mr. Lee could not also recover. But that is a cause of action which is now in disfavour and must be limited to cases of master and servant, and not extended to any new cases. That was so held by the Privy Council in Attorney-General for New South Wales v. Perpetual Trustee Co. (Ltd.). (1955) AC 457; (1955) 92 CLR 113 ." (at p413)

6. The passage just quoted appears to me, if I may say so with respect, to reflect accurately the judgment of the Privy Council to which it refers. It was, of course, only an obiter dictum, and a few months later it was overshadowed by considered pronouncements of Denning, Birkett and Parker L.JJ. in Inland Revenue Commissioners v. Hambrook (1956) 2 QB 641 , to the effect that the action per quod lies in respect only of the services of domestic or menial servants. These pronouncements, though commanding most respectful attention, are not binding on this Court. On the other hand, the judgment of the Privy Council is binding here, and I must accordingly govern myself by the view of the law which I understand it to express. (at p413)

7. It is true that in the Perpetual Trustee Co.'s Case (1955) AC 457; (1955) 92 CLR 113 Viscount Simonds, who delivered the judgment of their Lordships, mentioned as Lord Sumner had mentioned before him that the action per quod servitium amisit appears to be a survival from the time when service was a status, and that the status "lay in the realm of domestic relations" (1955) AC, at p 490; (1955) 92 CLR, at p 130 . But "domestic relations" covers a much wider field than domestic service. The context of the judgment, read as a whole, seems to me to make it clear that his Lordship, who had accepted (1955) AC, at pp 481, 482; (1955) 92 CLR, at pp 121, 122 Blackstone's dichotomy of the relations in which persons may find themselves into "public relations" and "private economical relations", was concerned in the words I have quoted, as he had been throughout that part of the judgment which investigated the nature and limits of the action per quod, to insist that the relation of master and servant which the law knew as one of the private or domestic relations of life would support the action, and that no other relation, and in particular no relation in the sphere of public relations, would do so. The service of a constable, his Lordship said, is different in nature, or on a different plane, from "the domestic relation" (1955) AC, at p 482; (1955) 92 CLR, at p 122 . He quoted from Salmond on Torts, 11th ed. (1953), p. 406, and from Holdsworth, and referred to the Year Books, in support of his proposition that "There is no doubt that from early days a master could maintain an action against a wrongdoer for the loss of the services of his servant" (1955) AC, at p 482; (1955) 92 CLR, at pp 122, 123 . (at p414)

8. Not until he came to speak of the distinction between cases of enticing or harbouring servants and cases of injuring servants did Viscount Simonds pay any attention to the case which seems to have provided the principal inspiration for the judgments in Hambrook's Case (1956) 2 QB 641 , namely Taylor v. Neri (1795) 1 Esp 386 (170 ER 393) . His Lordship's concern at this point of the judgment was to show that cases on enticement or harbouring of servants should be put on one side as dealing with a branch of the law which had developed differently from the law as to causing loss of service by injuring servants. His use of Taylor v. Neri (1795) 1 Esp 386 (170 ER 393) was simply for the purpose of saying that while it was not clear what range of service Eyre C.J. meant to refer to when in that case he used the term "menial" he must have been aware (I paraphrase his Lordship's words as I understand them) how far beyond the limits of the injury cases the enticement and harbouring cases had gone. I do not read his words as expressing an opinion that the doubt attributed to Eyre C.J. was justified. But what is for present purposes of importance in Viscount Simonds' judgment is the comment upon the case of Martinez v. Gerber (1841) 3 Man &G 88 (133 ER 1069) . There the injured person was described as the plaintiff's "servant and traveller", and the comment made (1955) AC, at p 486; (1955) 92 CLR, at p 126 is that the decision must be regarded as establishing that at this date (1841) a person so described stood in such a relation to his master as to support the action. This, his Lordship said, " . . . probably represents some advance from the limit suggested by Eyre C.J." (1955) AC, at p 486; (1955) 92 CLR, at p 126 ; and, having said that, he made no further reference to the menial or domestic character of the service. The inference from the whole judgment seems to me to be that the Privy Council was in agreement with the passage quoted (1955) AC, at p 485; (1955) 92 CLR, at p 125 from the judgment of Dixon C.J.: "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 action per quod servitium amisit there has not been any limitation upon the class of services for the loss of which a private employer may sue." (1952) 85 CLR, at p 248 . Expressing their Lordships' final opinion upon the case, Viscount Simonds treated the problem as depending upon "a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the State which he is said to serve" (1955) AC, at p 489; (1955) 92 CLR, at p 129 ; and he put aside, as having been made without argument or deliberation, the extensions in certain cases of the action per quod to cases of "persons in the public service who (to repeat the now familiar words) are not servants of the Crown in such a sense that the ordinary law of master and servant determines the relation of the parties" (1955) AC, at p 490; (1955) 92 CLR, at p 130 . (at p415)

9. In Hambrook's Case (1956) 2 QB 641 , as I have said, a more limited interpretation was placed upon the Privy Council's judgment, but no earlier case supporting the narrower view is quoted beyond those I have mentioned. Indeed, in Hambrook's Case (1956) 2 QB 641 itself Lord Goddard C.J., as the judge of first instance, said ". . . there must be some relationship of master and servant, whether arising out of contract or of domestic circumstances, on which to found the action" (1956) 2 QB, at p 652 . His Lordship made a signficant observation. He referred to a contention by the Solicitor-General that it is unnecessary, to support this class of action, to show that service is rendered under a contract, and that de facto service is enough; and then his Lordship said: "I agree that the cases support this, though I believe that those that do are all concerned with service of a menial, that is, domestic, character . . . Even these all depend upon there being some, though it be almost fictitious, relation of master and servant." (1956) 2 QB, at pp 654, 655 . (at p416)

10. In the Court of Appeal, Denning L.J. quoted from Blackstone's Commentaries p. 429 this sentence: "The reason 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". His Lordship then said: "By 'domestics' Sir William Blackstone clearly meant the menial servants described by him in his first category. He seems to have considered a master to have a property in his menial servants, but not in others" (1956) 2 QB, at p 663 . One who reads the whole of p.429 of Blackstone, and reads it in its context, may be pardoned for thinking that the use of the word "domestic" in the one sentence which Denning L.J. quoted has been allowed to outweigh more important indications of the learned author's meaning. As his Lordship pointed out, the passage occurs in a chapter which commences by describing the relation of master and servant as one of "the three great relations in private life", and dividing servants into the four classes of menial or domestic servants, apprentices, labourers, and those in a superior or ministerial capacity such as stewards, factors and bailiffs. The author first deals with the manner in which the relation of service affects the master and the servant, and then he turns "to see how strangers may be affected by the relation of master and servant". In dealing with the first topic he differentiates as he goes along between the different classes of servants. In dealing with the second topic, however, he speaks quite generally, not suggesting at any point that it makes any difference in regard to a stranger whether a servant belongs to one class or another. Whatever he may have meant in the sentence describing "the reason and foundation upon which all this doctrine is built", one thing is clear: he says without qualification, a few lines before, that "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." There is much difficulty in supposing that the generality of this proposition was intended to be understood as cut down by the inclusion of the word "domestic" in the final sentence of the paragraph. I would venture the respectful suggestion that too much has been extracted from the notion that the basis of the action per quod is the ancient idea of the master having a property in his servant. From this it seems to have been inferred that the availability of the action depends upon whether it is (or used to be) appropriate to think of the servant as a chattel, and that, as none but the humblest class of servants could be so considered, the action lies only in respect of such a servant. But although it is true that the basic idea of the action is sometimes in the books described as the notion of a master's having a proprietary interest in his servant, the fuller and (I think) the more accurate way of stating it is more often found, namely that the master's quasi-proprietary right which founds the action is in the services which he would have received but for the defendant's wrongdoing. That proposition hardly allows of differentiation between classes of servants, either by means of such steps as I have described or otherwise. But however that may be, if the view which prevailed in Hambrook's Case (1956) 2 QB, 641 is correct, every declaration in an action per quod servitium amisit of which any record has so far been brought to light (except the declaration in Bennett v. Allcott (1787) 2 TR 166 (100 ER 90) ) must have been obviously and strikingly demurrable, yet none was demurred to. In Grinnell v. Wells (1844) 7 Man &G 1033 (135 ER 419) the Court of Common Pleas referred to Bennett v. Allcott (1787) 2 TR 166 (100 ER 90) as an instance of its always having been held "that the loss of service must be alleged in the declaration, and that loss of service must be proved at the trial, or the plaintiff must fail" (1844) 7 Man &G, at p 1041 (135 ER, at p 423) and Tindal C.J. added: "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" (1844) 7 Man &G, at p 1041 (135 ER, at p 423) . Although the whole point in the case was that the action must fail for want of allegation and proof of service, not a word was said to suggest that only one class of service would do. One may read case after case with mounting incredulity that the action should be subject to a very important limitation which neither counsel nor judges ever think to mention. I cannot think that all these great lawyers of the past either misapprehended the law or consistently lapsed into inaccuracy of expression. (at p417)

11. In my opinion, the right course for us to pursue, both on principle and on the authority of the Privy Council's judgment, is to maintain in its integrity what Abbott C.J. stated as "a principle of the common law": "that a master may maintain an action for loss of service, sustained by the tortious act of another, whether the servant be a child or not": Hall v. Hollander (1825) 4 B &C 660, at p 663 (107 ER 1206, at p 1207) . Accordingly, I am in favour of holding that the action per quod lies whenever the plaintiff and the person injured by the wrongdoing stood to one another at the time of the injury in the relation of master and servant. (at p418)

12. It will be noticed that the principle, as so stated, makes no distinction according as the employing party is a subject or is the Sovereign. I know no reason why it should. Her Majesty in her personal capacity may no doubt enter with a subject into a contract which places the parties in the relation of master and servant in the strictest sense of the law. Quince's Case (1944) 68 CLR 227 and the Perpetual Trustee Company's Case (1955) AC 457; (1955) 92 CLR 113 do not lay down that the Queen could never have a servant in that sense. What I apprehend that they establish is that a member of the armed forces and a constable are not servants in the relevant sense, because the relation between them and the Crown is not a relation between private persons, but is a relation between the subject and the State. It is at this point that I have found myself unable to reconcile the approach which Parker L.J. made to the problem in Hambrook's Case (1956) 2 QB 641 with the opinions expressed by the Privy Council. His Lordship's statement that "the action per quod servitium amisit does not depend on the existence of a contract of service, but on the fact of service" (1956) 2 QB, at p 671 coincides with the view of the Privy Council if "the fact of service" means the fact that service is rendered pursuant to a master and servant relationship. But his Lordship added, and made it the foundation of his opinion, that "The fact of service undoubtedly exists in every case between the Crown and those in its employ." (1956) 2 QB, at p 671 . If "the fact of service" in that sentence has the same meaning as it must have had in the preceding sentence, the proposition seems to be at variance with the Privy Council's observations about the nature of Crown "service". (at p418)

13. The question which arises in the present case on the basis of the views I have expressed is whether, in New South Wales, the Commissioner for Railways and an engine driver in the railway service are strictly master and servant vis-a-vis one another or are simply two functionaries whose only relation to one another is that each performs duties arising from a relation between himself and the State and whose respective duties interact. If the railways were run by an ordinary government department, the Commissioner being the permanent head of that department, I should think that the latter description might well be applied. But we are not here concerned with an ordinary department. The Parliament of New South Wales, by the Government Railways Act 1912-1955, has set up the Commissioner as a corporation to be the authority to carry out the Act (s. 4) and has vested the railways in him (s. 11), giving him power to carry and convey passengers and goods for reasonable tolls and charges (s. 24), and given him a variety of powers and duties, including the duty to "appoint or employ such officers to assist in the execution of the Act" as he thinks necessary (s. 70). Throughout the Act "officer" means any officer, clerk, servant or other person employed by the Commissioner to assist in the execution of the Act (s. 3). The Act provides for many of the incidents of appointment or employment in the railway service (Pt. VIII), including its liability to termination (ss. 70, 78, 80, 82) and suspension (ss. 82, 83). Provision is also made for superannuation allowances and gratuities (Pt. IX). In short, Parliament has legislated for the railway service as it might for a branch of the public service of the State, and indeed in at least one place in the Act has used those very words to describe it (s. 113(c)). One cannot fail to see that the resemblance between the railway service and the ordinary public service is close. Yet one difference remains, and that the vital one. An officer in the public service enters into no contract of service with any individual. If he can be said to enter into a contract at all it is a contract with the Government. But an officer in the railway service enters into the employment of the Commissioner. (at p419)

14. The conduct of the railways is in law the Commissioner's responsibility; and it is to assist him in discharging the responsibility that he is required by s.70 to "appoint or employ" such officers as he thinks necessary. ("Appoint" and "employ" are apparently used to express the one idea for which the definition of "officer" finds "employed" sufficient by itself). The relationship, therefore, is made by the Act a relationship between individuals and not between an individual and the State. To recognize this as the legal situation involves no failure to realize that the responsibility which the Commissioner has to discharge is of a public character; it is none the less his, and his employment of officers is therefore in point of law an employment in his affairs and in the sphere of private relations. A good many years ago, the relation between the officers in the railway service and the Commissioner (or rather the Commissioners, for there was at that time a body of Commissioners) was described by Ferguson J. in terms which, as far as I know, have never been quarrelled with since. Delivering the judgment of the Supreme Court of New South Wales in Obee v. The Railway Commissioners for New South Wales (1930) 30 SR(NSW) 201; 47 WN 71 and, referring to an officer transferred from the public service to the railway service who sued for damages by way of compensation for leave not allowed before retirement, his Honour said: "A further contention raised on behalf of the Commissioners is that even assuming the plaintiff to be entitled to damages, the action should have been brought not against them but against a nominal defendant representing the Government. The argument is that as his service is to count for purposes of leave as service in the public service, his only remedy is that which he would have if he were still in the public service. The plain answer to the argument is that when he was transferred he became the servant of the Commissioners, and had to look to them for his pay. When the Act gave him leave of absence on full pay, it meant leave of absence from that service on that pay. Leave of absence does not interrupt the relationship of master and servant; a servant on leave is still in his employer's service. It was the Commissioners only who could give or deny him the leave to which he was entitled, and it is to them only that he can look for compensation." (1930) 30 SR (NSW), at p206; 47 WN, at p73 There has been a good deal of subsequent legislation affecting the administration of the railways, and in Commissioner for Railways (N.S.W.) v. Hailey (1938) 60 CLR83, at p 95 , where the amending legislation up to 1938 was reviewed, Dixon J. put aside as immaterial to the case the question whether the Commissioner or the Crown should be regarded as the employer. The Act is to-day in all relevant respects as it was when Obee's Case (1930) 30 SR (NSW) 201; 47 WN 71 was decided, and what was said then seems to me correct now. Accordingly I am of opinion that employment by the Commissioner, as surely as employment by a private railway company, creates the relationship of master and servant which supports the action per quod servitium amisit. (at p420)

15. For these reasons I would allow the appeal. (at p420)

TAYLOR J. Broadly stated the question in this appeal is whether an action for damages will lie at the suit of an employer when he has been deprived of the services of his employee by some tortious act on the part of a third party which has caused an incapacitating injury to the employee. By the expressions "employer" and "employee" I intend to describe no more and no less than persons standing in the relationship to one another which is commonly denoted by the expressions "master" and "servant". (at p420)

2. In comparatively recent years much has been written concerning the origin and history of the right of a master to bring such an action and in this Court it has been held that the Commonwealth has no right to recover damages for the loss of the services of a member of the Royal Australian Air Force (The Commonwealth v. Quince (1944) 68 CLR 227 )Whilst the State of New South Wales has been denied like relief for the loss of the services of a police constable (Attorney-General for N.S.W. v. Perpetual Trustee Co. (Ltd.) (1952) 85 CLR 237 ). These decisions conflicted with the decisions in Bradford Corporation v. Webster (1920) 2 KB 135 and Attorney-General v. Valle-Jones (1935) 2 KB 209 but, as the Judicial Committee of the Privy Council has pointed out, in these cases the vital question was allowed to go by default and the considered decisions of this Court were preferred (Attorney-General for New South Wales v. Perpetual Trustee Co. (Ltd.) (1955) AC, at p 487; (1955) 92 CLR, at pp 126, 127 ). (at p421)

3. The decision of the Judicial Committee in the last - mentioned case proceeded upon the basis that a police constable is the holder of a public office and from a recognition of the "fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the State which he is said to serve" (1955) AC, at p 489; (1955) 92 CLR, at p 129 . "The essential difference" it was said "is recognized in the fact that his (a constable's) relationship to the Government is not in ordinary parlance described as that of servant and master" (1955) AC, at p 490; (1955) 92 CLR, at p 129 . Not dissimilar consideration led, earlier, to the decision of this Court in Quince's Case (1944) 68 CLR 227 and, in the latter case, their Lordships, upon appeal, shared "the opinion entertained by all the judges of the High Court that the case of the constable is not in principle distinguishable from that of the soldier" (1955) AC, at p 489; (1955) 92 CLR, at p 129 . As is readily seen each of these cases was primarily concerned with the particular character of the relationship which existed between the plaintiff and the person whose services had been lost as the result of the defendant's wrongful act. But one cannot fail to observe that if some broader ground for rejecting the claims of the respective plaintiffs had been readily discernible this would have rendered it unnecessary to consider the special position of a police constable or the particular character of the relation between the Crown and a member of the Air Force. (at p421)

4. In the present case it is contended that a broader ground does, in fact, exist and this, it is said, is discoverable upon an examination of the origin and history of the action per quod servitium amisit. There can be little doubt that the action found its remote origin in the notion that a master had a proprietary interest of some kind in the services of his servant. As was said by Viscount Simonds speaking for the Judicial Committee in the Perpetual Trustee Company's Case (1955) AC 457; (1955) 92 CLR 113 : "There is no doubt that from early days a master could maintain an action against a wrongdoer for the loss of the services of his servant and that this right (to quote Sir William Holdsworth) 'rested at bottom on the idea that the master had a quasi-proprietary interest in his servant's services: and that idea is connected with ideas as to the status of a servant which originated in the rules of law applicable to villein status'." (1955) AC, at pp 482, 483; (1955) 92 CLR, at pp 122, 123 . That being so the cause of action was concerned with the loss of de facto services and not with injury to contractual rights to service. Indeed, as Viscount Simonds pointed out "The law . . . could hardly have been otherwise, as the form of action in trespass was established before the concept of contract had been developed in our jurisprudence" (1955) AC, at p 483; (1955) 92 CLR, at p 123 . But to point to these matters does not tell us much, if anything, concerning the present day limits of the action, for once it survived - as it did - the transition of the servant from status to contract and, thereby, produced the anomaly so frequently the subject of comment: see particularly per Fullagar J. in Attorney-General for N.S.W. v. Perpetual Trustee Co. (Ltd.) (1952) 85 CLR, at p 285 the older notion, which, at one and the same time, gave rise to and defined the limits of the master's right, could no longer operate definitively. Thenceforth, it was an action in respect of one of "two species of injuries incident . . . to the relation of master and servant". The first of these was "retaining a man's hired servant before his time is expired" and the second was "beating or confining him in such a manner that he is not able to perform his work". The latter "point of injury", that of "beating, confining, or disabling a man's servant", was said to depend upon the same principle as the first, that is, "the property which the master has by his contract acquired in the labour of the servant." (Blackstone's Commentaries Bk. III, pp. 141 - 142). Nevertheless, it is now contended by the respondent that, because the action was originally, and remotely, confined to the case of those who occupied the status of servant, it should now be held that, although a master may sue for the loss of the services of some kinds of servants who have been incapacitated by the wrongful act of a third party, he may not do so in respect of the services of others. In this submission the respondent is supported by the decision in Inland Revenue Commissioners v. Hambrook (1956) 2 QB 641 . Until that case there was little to show how far the action had outgrown its mediaeval limitations. It had, of course, survived the transition from status to contract but historical examination reveals little in the way of precise pronouncements concerning the course of its subsequent development from time to time. However in Hambrook's Case (1956) 2 QB 641 the Court of Appeal definitely and explicitly ruled that the action is available only when the servant whose services have been lost "can properly be regarded as a member of the master's household, that is, as part of the family" per Denning L.J. (as he then was) (1956) 2 QB, at p 666 , or as a "menial servant" per Parker L.J. (1956) 2 QB, at p 672 . (at p423)

5. There may be a good deal to be said for the proposition that "servant" in current terminology means something different from or something more than that expression meant when this form of action was first permitted. Perhaps, it means something more than it meant a mere hundred years ago but, to me, this signifies little. If the action has survived to enable a master to sue for the loss of his servant's services it is, I should think, no less logical to afford relief in cases where the servant may be so described by current terminology than to endeavour to confine it to the case of those servants - if, indeed, any appropriate category or categories may be found - who, according to the notions of the Middle Ages might have been then found answering that description. (at p423)

6. Considerable research into the history of the action has been undertaken in recent years and the decision in Inland Revenue Commissioners v. Hambrook (1956) 2 QB 641 made it inevitable that much of the ground should be trodden again unless we were simply to accept the decision of the Court of Appeal as finally determining the matter. To have adopted this course would have been a simple solution and, indeed, it is the course which originally I should have preferred to adopt. But, notwithstanding the fact that it is a decision of a court for which I feel profound respect there are too many difficulties in the way. One of these I have already mentioned and it is necessary to refer to it again. It seems to me that if the decision of the Court of Appeal be right then the broad ground upon which it rests would readily have solved the problems in Quince's Case (1944) 68 CLR 227 and the Attorney-General for New South Wales v. Perpetual Trustee Co. (Ltd.) (1955) AC457; (1955) 92 CLR113 . The fact that it did not is, of course, by no means decisive and it may well be said that in the latter case their Lordships wished to confine their decision to the special facts of the case. Yet, the broader ground was argued by the respondent and if the Judicial Committee, as then advised, had been prepared to rely upon it that would have been the end of the case. We may, therefore, start by assuming, at least, that their Lordships did not regard the proposition now advanced by the respondent as one to which they could give their ready assent. Secondly, it seems to me that in reaching their conclusions in the Court of Appeal Denning L.J. (as he then was) and Birkett L.J. misconceived the use made by Viscount Simonds in the latter case of the expression "domestic relations" (1955) AC,at p490; (1955) 92 CLR,at p130 . In giving his reasons Denning L.J. said: "The opinion of the Board in the Perpetual Trustee Case (1955) AC 457; (1955) 92 CLR 113 , delivered by Viscount Simonds, contains many significant passages, of which I would just quote one: 'The form of action appears, as Lord Sumner said, to be a survival from the time when service was a status. That status lay in the realm of domestic relations. It would not, in their Lordships' view, be in accord with modern notions or with the realities of human relationships today to extend the action'. Now, having traced the history of this action, I think it should be confined today (as it was in the eighteenth century) to the realm of domestic relations where a member of the master's household is injured: for that is the only realm to which it can in reason be applied. It does not lie, therefore, at the instance of governments, limited companies, or other employers who keep no household." (1956) 2 QB,at pp665,666 . Birkett L.J. quoted the first two sentences of these observations of Viscount Simonds and then made a brief reference to earlier quotations by Denning L.J. from Vol.I of Blackstone's Commentaries. He then added that "The quotations from Blackstone support the same general view that the action was in respect of servants who were within the domestic sphere and where the proprietary element was present" (1956) 2 QB,at p669 . These observations accorded with the view expressed by Denning L.J. that "By 'domestics' Sir William Blackstone clearly meant the menial servants described by him in his first category" (1956) 2 QB,at p663 . In the course of the judgment of the Privy Council in Attorney-General for New South Wales v. Perpetual Trustee Co.(Ltd.) (1955) AC 457; (1955) 92 CLR 113 the expression "domestic relations" was used on a number of occasions. Towards the conclusion of the judgment the following passage appears: "Their Lordships can now express their final opinion upon the case. They repeat that in their view there is a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the State which he is said to serve . . . The essential difference is recognized in the fact that his" (a constable's) "relationship to the Government is not in ordinary parlance described as that of servant and master." (1955) AC, at pp 489, 490; (1955) 92 CLR, at p 129 . A little later appears the passage which was quoted by Denning L.J. But in using the expression "domestic relations" Viscount Simonds cannot, it seems to me, be taken to have been describing only the relations between "menial" or "household" servants and their masters: the expression was used to mark the essential difference between what Sir William Blackstone had described as "public relations" and "private economical relations". That this is so is, to my mind, made abundantly clear by earlier observations made in the course of the judgment at pp. 481 and 482. Viscount Simonds referred to both Ch. IX and Ch. XIV of the first volume of the Commentaries and in the course of his observations pointed out that the fourteenth chapter opened " . . . with these significant words: 'Having thus commented on the rights and duties of persons, as standing in the public relations of magistrate and people, the method I have marked out now leads me to consider their rights and duties in private economical relations'." Then after referring to the "three great relations in private life" which Blackstone specifies and of which the first is that of master and servant "which is founded in convenience, 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", his Lordship cited a passage from Salmond on Torts, 11th ed. (1953), p. 406, concerning the origin of the form of action "now under review". The comment was then made that "This citation is more strictly relevant to the later part of this judgment, but its present importance lies in the broad distinction which Blackstone had previously made between 'public officers' and 'domestic relations'." (1955) AC, at p 482; (1955) 92 CLR, at p 122 . The emphasis is mine and serves to indicate that in using the expression "domestic relations" his Lordship was merely wishing to distinguish between employment in a public office and employment of such a character as would, "in common parlance", give rise to the relation of master and servant. Indeed, if Viscount Simonds had meant to distinguish between "menial" or "household" servants on the one hand and, on the other, servants who could not be so described, his observations would have been sufficient to dispose of the case on a much broader basis than that so explicitly stated. (at p426)

7. A further difficulty which I feel is that the Court of Appeal appeared to treat the remarks of Eyre C.J. in Taylor v. Neri (1795) 1 Esp 386 (170 ER 393) as of prime importance and the decision in Martinez v. Gerber (1841) 3 Man &G 88 (133 ER 1069) as of little, if any, consequence. In dealing with the latter case Denning L.J. said:- "Then in 1841 came Martinez v. Gerber (1841) 3 Man &G 88 (133 ER 1069) , which looks at first sight as if it was an extension. A master was allowed an action for loss of service for his 'servant and traveller'. No point was taken that the action did not extend to him. There is nothing to show, in any of the reports of the case, whether he lived in or not. At that time many servants did live in the master's house as members of the household. I think we should assume that that was the case, else it would be an illegitimate extension of the law as it was understood by Eyre C.J." (1956) 2 QB, at p 664 . With the greatest respect I find myself unable to make this assumption particularly when I observe from the report of the case in the Law Journal Reports (1841) 10 LJ (NS) CP 314 that the argument made the point that, consistently with the allegations made in the declaration, the injured servant might have been "a traveller paid only for the journeys which he performed" (1841) 10 LJ (NS) CP, at p 315 . Nor do I think any such assumption can be made consistently with the view of the Judicial Committee that the decision must "be regarded as establishing that at this date a person described as a servant and traveller stood in such a relation to his master as to support the action, and this probably represents some advance from the limit suggested by Eyre C.J." (1955) AC, at p 486; (1955) 92 CLR, at p 126 . (at p426)

8. Finally, even if the action is now to be circumscribed by notions concerned with the fact that originally it was available only when the services of a servant by status had been lost, or, perhaps, when a servant who lived in the master's household had been incapacitated by the wrongful act of some third party, it is, I think, impossible to say that "menial" adequately or properly describes a modern equivalent category. Nor does the word "domestic" when it is used to denote "household", as distinct from other, servants. (at p426)

9. In thus commenting upon the decision of the Court of Appeal I have to a considerable extent indicated that research into the origin and history of the action has not provided me with any safe grounds for thinking that it can now be limited to servants so described. I have also, to some extent, indicated that the judgment of the Judicial Committee in the Perpetual Trustee Company's Case (1955) AC 457; (1955) 92 CLR 113 induces me to think that no such limitation is now open. Indeed, if as the Judicial Committee says, the case of Martinez v. Gerber (1841) 3 Man &G 88 (133 ER 1069) "probably represents some advance from the limit suggested" (1955) AC, at p 486; (1955) 92 CLR, at p 126 in Taylor v. Neri (1795) 1 Esp 386 (170 ER 393) , it must be taken to establish that before the middle of last century the action was not solely concerned with the loss of the services of "menial" or "household" servants. And if the action was available to enable the plaintiffs in the former case to recover the expenses and wages paid to a substitute "servant and traveller" employed by them upon what principle did the case proceed? Was it because the action was then understood to be available whenever the relation commonly described as that of master and servant existed? Or, can it be said that though it might travel beyond a loss of the services of menial or household servants it did not extend to the whole field of the master and servant relationship as then understood? Acceptance of this view would, of course, necessitate the formulation of some sort of intermediate limitation which, as far as I can see has never been suggested and which I would find impossible to devise. The final possibility is that in Martinez v. Gerber (1841) 3 Man &G 88 (133 ER 1069) the vital question went by default but the Judicial Committee does not appear to have been prepared to proceed on that basis. Much as it might be desired to confine the somewhat anomalous remedy within the narrow limits suggested by the respondent such a course does not appear now to be open and, indeed, if I have correctly understood the comments of their Lordships, it escaped beyond those limits more than a century ago. (at p427)

10. In accepting, as I do, the views expressed by the Chief Justice and Kitto J. concerning the relationship between the appellant and his injured employee I am of the opinion that the appeal should be allowed. I wish, however, to add that it appears to have been conceded that the measure of the appellant's loss was the amount paid by way of wages or salary to the injured employee during his incapacity. If it were necessary to decide whether this is the true measure of the appellant's loss I should be inclined to agree with the observations of Fullagar J. in the Perpetual Trustee Company's Case (1952) 85 CLR, at pp 289, 290 . But since it is not necessary to do so I reserve my opinion until such time as the question should arise directly for decision. (at p427)

MENZIES J. The first question to be determined here is whether an action for loss of services lies only when a master has by the wrongful act of a third person been deprived of the services of a household or domestic servant as the Full Court by a majority (Street C.J. and Herron J.) has decided, or whether the action lies whenever a master has been so deprived of the services of any servant, which was the view of Owen J. dissenting. (at p428)

9. When the action is considered historically it ought not, I think, to be isolated from other common law doctrines concerning master and servant. All form one body of law. The action for loss of servitium is, in Lord Sumner's words, "a survival from the time when service was a status" (1917) AC, at p 60 ; but so is a great part of the English law of master and servant, which grew up against the background of feudal society when the relationship between lord and man was a main social bond. The personal quality in the relation between a lord and his man, between master and servant had some striking manifestations in rules of law. A master might chastise his servant, but he could not depute anyone else to do so. A servant who killed his master was guilty of petty treason. A servant's possession of his master's goods was different from that of a bailee who was not a servant; and this had its consequences in the law of both larceny and trover. A master had a right of action when his servant was enticed from him or when an absconding servant was harboured. Since Lumley v. Gye (1853) 2 E &B 216 (118 ER 749) , these last remedies have become merged in a more general right of action for inducing a breach of contract; but they too were a part of the general body of the common law of master and servant, the nidus of which was in a social system that has long passed away. The distinctions between trespass and case are partly responsible for differences in the development of the several parts. But, so far as I know, it has not been suggested, except in the case of the action per quod servitium amisit, that any of the main principles of the common law affecting the relationship of master and servant ever were or, so far as they still exist, are restricted to persons whom we would to-day describe as domestics or menials. The only purpose for which the common law made that distinction seems to have been for the notice required to determine the hiring. Of course, as the rules originated in the personal relationship of master and man, many of them were applicable only where the master as well as the servant was a natural person, not a corporation. But corporations could, of course, always have servants including agricultural servants and domestic servants and they were always called servants - e.g.: plowmen et servants de husbandry, butlers, cookes et huiusmodi (Brooke's Abridgment, f. 184, 51). The only question was whether or not their retainers had to be by deed. On principle there seems to be no reason why a corporation should not have had a right of action for loss of the servitium of a servant. (at p454)

10. Somewhat the same consequences emerge from an historical consideration of the modern rule that a master is liable for the torts of his servant, including his negligence, occurring in the course of his service. That we are not to use the doctrine of vicarious liability to determine the scope of the action per quod servitium amisit is established by recent authority; for they developed on different courses. And indeed vicarious liability, in its modern form, appears much later than the action for loss of services. It does not clearly appear earlier than Turberville v. Stampe (1697) 1 Lord Raym 264 (91 ER 1072) . Whether it had, nevertheless, a remote ancestry in slavery and the noxae deditio of Roman law, as some scholars, including Holmes, have said, or whether it had a Germanic origin and in England grew from indigenous roots in frankpledge and mainpast, as others, including Wigmore, Maitland and Holdsworth have suggested or maintained, does not matter: see Holmes, The Common Law (1882) pp. 6-10 et passim, and Agency, Harvard Law Review (1891) vol. 4, p. 345 and (1891) vol, 5, p. 1; Wigmore, Responsibility for Tortious Acts, Harvard Law Review (1894), vol. 7, p. 315; Pollock &Maitland, History of English Law (1895), vol. 2, p. 528; Holdsworth, History of English Law, vol. 8, 2nd ed. (1937), p. 472. The important thing is that when the doctrine of the responsibility of a master for the acts of his servant does appear, it is as a consequence of the relationship of master and servant. That relationship to-day, as in 1697, is created by contract. But when the relationship exists its legal consequences are inescapable. And those consequences are not restricted to servants who in any special way resemble the servants of an earlier age. The contrast between the doctrine of vicarious liability and the narrow application of the action for loss of services for which the respondent contends in this case is brought out by a quotation from Holmes J.'s, The Common Law (1882), p. 230: "If the liability of a master for the torts of his servant had hitherto been recognized by the courts as the decaying remnant of an obsolete institution, it would not be surprising to find it confined to cases settled by ancient precedent. But such has not been the fact. It has been extended to new relations by analogy. It exists where the principal does not stand in the relation of paterfamilias to the actual wrongdoer . . . and so far as is known, no principal has ever escaped on the ground of the dignity of his agent's employment". Until recent times, has any defendant in an action per quod servitium amisit ever escaped on the grounds of the dignity of the injured servant's employment? I have found nothing which established that the action was available only in respect of servants of low degree. There may well be much that I have not discovered, for I have not the skill for an exhaustive search. But there is nothing in the material which was brought to our notice; the Chief Justice has found nothing; and the authors of the learned articles to which we were referred do not seem to have brought to light anything in any way decisive. In most, if not in all, the early trespass cases the servant was in fact of lowly station; but the action was certainly not regarded as limited to servants who performed only domestic tasks, for there are instances of its being brought for the loss of agricultural services. And there seems to be nothing to indicate that the rank of a servant affected any of his master's rights in respect of him or his services. Fleta in his well-known account of the economy of a manor, in the chapter Doctrina servietium (Book 3, c. 71), deals with servants of high and low degree, majores et minores. They were all ministri. The steward, a great officer, the bailiff whose duty it was to supervise the mowers, reapers, carters and labourers, the reeve, the cook, the hayward and the dairymaid were all in the service of the lord of the manor. The only distinction between domestics and other servants which Fleta makes is that the steward may not dismiss from the lord's service any highly placed members of the household staff (in capite cum domino commorantes); for that was a power reserved to the lord himself (Book 3, c. 72). Fitzherbert makes it clear that persons whose rank exempted them from the obligations of the Statutes of Labourers might still become servants: "If a gentleman or a chaplain, or a carpenter or such as should not be compelled to serve covenant to serve, they shall be bound by their covenant, and an action will lie against them for departing from their service". (at p456)

11. All of this seems to have carried into Tudor times. Thomas Smith in De Republica Anglorum written in 1565 and first published in 1583 recognized that the positions of an apprentice or a hired servant resembled in some ways that of the bond servants of an earlier age. Apprentices he described as in a kind of "servitude or bondage". "But this is only by covenant, and for a time, and during the time it is vera servitus. For whatsoever the apprentice getteth of his own labour, or of his master's occupation or stock he getteth to him whose apprentice he is; he must not lie forth of his masters doors; he must not occupy any stock of his own; nor marry without his master's licence; and he must do all servile offices about the house, and be obedient to all his masters commandments, and shall suffer such correction as his master shall think meet, and is at his master's clothing and nourishing, his master being bound only to this which I have said, and to teach him his occupation". Until the industrial revolution the legal position of an apprentice was much as it had been in the Middle Ages. Apprentices were ordinarily inmates of their masters' houses; and as late as the eighteenth century they often performed domestic tasks there, such as waiting at table (Lecky, History of England in the Eighteenth Century, vol. ii, p. 218). But I have found no suggestion that the master's remedies if his apprentice were injured or enticed away were a consequence of his being an inmate. They were the consequence of the covenant between master and apprentice, which established a relationship one incident of which was the obligation of the master to maintain his apprentice and another the obligation of the apprentice to work for and dwell with his master. Sometimes it is said that the master was in loco parentis. As for servants other than apprentices, Smith wrote of them: "Besides apprentices, others be hired for wages, and be called servants or serving men and women throughout the whole Realm, which be not in such bondage as apprentices, but serve for the time for daily ministry, as servi and ancilloe did in the time of gentilitie, and be for other matters in liberty as full free men and women". The lawyers of the sixteenth and seventeenth centuries seem never to have thought that because villeinage had disappeared and servants were no longer in law bondmen, and the "time of gentilitie" had gone, a master's right to an action per quod servitium amisit had been altered or limited. They extended it by allowing it to be brought in case as well as in trespass. A distinction between indwelling domestic servants and other servants was recognized; and it affected the responsibility of heads of households in matters of public law (see for example the Instructions for General Musters issued in 1572 in apprehension of war with Spain printed in Grose, Military Antiquities, vol. i, pp. 79-85). But I have found nothing to show that it affected the rights of masters against third persons in private law. The Statute of Artificers, Labourers, Servants of Husbandry and Apprentices 5 Eliz. I c. 4 (1562) does not suggest that, in relation to their masters, there were any essential differences in the legal position of the various classes of persons to whom it applied. (at p457)

12. There was no reason why a form of action, which after the breakup of the manorial economy continued in the new conditions of agricultural labour, should not have also continued in respect of servants in the new condition of manufacturing which developed after the Middle Ages. The journeyman who remained with a master and did not himself become a master was a servant (Lipson, Economic History of England, pp. 393-410). But in the new forms of capitalist manufacture - the woollen trade especially - many workers were piece-workers rather than servants. Blackstone followed the old common law in his classification of servants. So far as employees in industry were concerned no difficulty really arose in his time. The position of an apprentice was clear. A journeyman servant if he lived in his master's establishment, as was then common, was properly called a domestic. If a journeyman did not form one of a master's household, the question was whether he was a servant at all; not because to be a servant a man had to live in his master's house; but because, as servants ordinarily did so, an employee who did not was likely to be (using the terminology of later times) an independent contractor rather than a servant. That was how in 1774 Hart v. Aldridge (1774) 1 Cowp 54 (98 ER 964) arose; and the real question in Taylor v. Neri (1795) 1 Esp 386 (170 ER 393) was whether the singer was a servant. A distinction between servant and independent contractor was becoming recognized; but before the grounds of the distinction had been analysed and defined, one test of whether or not a man was a servant might well seem to be whether or not he lived with his master, as servants commonly did. (at p458)

13. The respondent's argument in this case seemed at one point to be: the action lies in respect of a servant; in the eighteenth century most servants lived with their masters; therefore the action lies to-day only in respect of servants who live with their masters. But this is illogical. No doubt in the eighteenth century, as now, the word servant unqualified ordinarily meant a personal domestic servant. That was the sense in which Swift used the word in his satirical Directions to Servants. And when Defoe complained in 1745 that tradesmen's servants were no longer content to submit to "family government" he was thinking of shopkeepers' servants living in their masters' households behind or above the shops. (The Complete Tradesman, c. 13). During the course of the argument I thought that possibly the word servant when used in declarations in actions per quod servitium amisit might therefore have implied that the servant was a menial or domestic. But there is nothing to support this. The word has in law always embraced many persons who are not domestic servants. Changes in economic and social conditions have made Blackstone's classification of servants outmoded, but they have not altered the essential meaning of the word servant. Its denotation may have expanded; its essential connotation in law has not. I can see no more reason than apparently did the judges of the nineteenth century for thinking that the servitium for the loss of which an action would lie is not coextensive with the ordinary legal relationship of master and servant. That is why with great respect to the Court of Appeal I find the decision in Hambrook's Case (1956) 2 QB 641 unsatisfactory. Moreover I am not clear whether the result of their Lordships' judgments is that the action per quod servitium amisit is to-day restricted to servants who perform domestic tasks whether they live in or out of their master's home; or to servants who perform domestic tasks and live in; or to all servants who live intra moenia as part of the household, whatever the nature of their work may be. And I am not clear what is the position of hotel, club and boarding house servants, nor whether the fact that their employer is a company rather than a private individual affects the matter. Perhaps it is unnecessary to speculate on this; for clearly the engine driver is excluded. But the rules that the Court of Appeal has enunciated raise many questions, not so much in the case of industrial employees as in cases more nearly akin to the conditions in which the action first developed. How for example would one classify a station manager, the overseer, jackeroos, station hands and stockmen, the groom, the gardener, the cook at the homestead and the cook in the shearer's hut or in a musterer's camp? And what about a boundary rider living miles from the homestead? Is he intra moenia if his hut is within the boundary of the run? Or does he differ from a man similarly employed but living near the homestead and doing odd jobs there when required? And what are the station owner's rights if the overseer, the boundary rider, the cook and the housemaid should all be hurt in a motor accident caused by the negligence of someone else? And does it matter that the legal owner of the station, the employer of the servants, is not an individual pastoralist but, as is so often the case, a family company, the head of the family living in the homestead? And is the situation different on a property conducted on a more modest scale where a farm hand sleeps at the homestead and eats in the kitchen, perhaps with the farmer's family? The varieties of rural employment, both pastoral and agricultural, are great; and the domestic arrangements associated with them vary too. I have mentioned some of them because they do have some resemblance to the work of hired men on a mediaeval manor in respect of whom the action per quod servitium amisit would lie; and I find it hard to see why in respect of such servants to-day loss of services should in some cases give rise to an action for damages while in other cases it is said it would not. It is possible to determine by legal criteria whether a man be a servant; but whether he is the sort of servant contemplated by Hambrook's Case (1956) 2 QB 641 would seem to be often a matter of uncertainty and debatable as a question of fact. No doubt these difficulties could be all removed if the action per quod servitium amisit were abolished. But, whether that course be desirable or not, we cannot deny any plaintiff a right of action which the law gives him. That anomalies will multiply if the law be as stated in Hambrook's Case (1956) 2 QB 641 cannot concern us; but it does, I think, justify an examination of the grounds of that decision in a more critical way than might ordinarily seem proper in the case of a decision of the Court of Appeal. (at p459)

14. In the precedents of declarations in actions per quod servitium amisit the word "servant" is unqualified. And in law it was a general term. Coke said it was too general to satisfy the Statute of Additions (2 Inst. 667, 668). And, if we are to look to the seventeenth and eighteenth centuries, More v. Stone (1648) Style 94 (82 ER 557) and Bleeke v. Grove (1663) 1 Sid 175 (82 ER 1040) in 1663 are significant. In the former the plaintiff had obtained a verdict in an action of trespass per quod servitium amisit. Then, to quote the report: "The defendant moves in arrest of judgment, and for cause shews, that the plaintiff hath not set forth how the party was his servant, whether as an apprentice, or by retainer, as he ought to have done. But the Court said that the record implies that he was his servant at the time when the trespass was done, and that is enough, and this is the usual form of declaring in this action in the Common Pleas, and in this Court also (and so many of the councel at the Bar affirmed)." (1648) Style 94 (82 ER 557) . Siderfin's comments in Bleeke v. Grove (1663) 1 Sid 175 (82 ER 1040) are noteworthy. Siderfin's reports have not always been highly regarded; but Francis North, afterwards Lord Guildford, said Siderfin was a good lawyer. The case was one in which a defendant in an action for battery pleaded in justification that the plaintiff was his servant, and that he had lawfully chastised him for neglect of duty. The decision turned on a point of double pleading. But Siderfin, who had been counsel for the plaintiff, in his comments argues that such a plea of justification should have shown that the plaintiff was retained as a servant and in what capacity and for what period (et pur ceo doit monstre a quel lieu fuit retaine, et auxy in quel faculty et puy quel temps) (1663) 1 Sid, at p 177 (82 ER, at p 1041) . The significant thing is that he contrasts such a plea with a count in a declaration per quod servitium amisit, where an averment of service was admittedly sufficient without showing more. But he argues that as the word servant would embrace persons of superior position it was not, in asserting a right to chastise, sufficient to describe a man merely as a servant (issint stewards, chaplains, surveyors etc. sont servants uncore semble que ne poent estre battue pur negleg de lour service) (1663) 1 Sid, at p 177 (82 ER, at p 1041) . When Siderfin wrote in 1663 the distinction between servants and other kinds of agents had not been developed to its present form, and certain persons who might not be called servants to-day were sometimes called servants. But by the nineteenth century the distinction between servants and other agents was fairly well settled. That the word servant in law was a word of extensive denotation not restricted to domestics is illustrated by a passage in the judgment of Littledale J. in Laugher v. Pointer (1826) 5 B &C 547 (108 ER 204) . "For the acts of a man's own domestic servants there is no doubt but the law makes him responsible, and if this accident had been occasioned by a coachman who constituted part of the defendant's own family there would be no doubt of the defendant's liability . . . This rule applies not only to domestic servants who may have the care of carriages, horses, and other things in the employ of the family, but extends to other servants whom the master or owner selects and appoints to do any work or superintend any business, although such servant be not in the immediate employ or under the superintendence of the master." (1826) 5 B &C, at pp 553, 554 (108 ER, at p 207) . He went on to instance seamen employed by a ship-owner, farm workers, and miners employed by a mine-owner. The case was concerned with the limits of vicarious liability, a doctrine which I realize is to be regarded as foreign to the present question. I quote it only as illustrating that, in the conditions existing soon after the industrial revolution, and before Martinez v. Gerber (1841) 3 Man &G 88 (133 ER 1069) , workmen in capitalist industry were by lawyers properly described as servants of their employers. (at p461)

15. By the Roman-Dutch law prevailing in South Africa an action similar to the common law action for loss of services exists. It is limited to domestic servants, because by the relevant texts the Roman-Dutch law is expressly so limited. It thus differs from the common law: see Union Government v. Ocean Accident etc. Corporation Ltd. (1956) 1 SALR 577 . (at p461)

16. No question of the measure of damages arises in this case. I therefore prefer to express no concluded opinion on what is I think a difficult question - certainly one on which there has been a difference of opinion - namely whether damages for loss of services can include wages paid to an injured servant during his absence and medical expenses borne by his employer. In Attorney-General v. Valle-Jones (1935) 2 KB 209 , McKinnon J. considered such sums were recoverable "in consequence of the loss of the services of the servant" (1935) 2 KB, at p 220 . In Mankin v. Scala Theodrome Co. Ltd. (1947) 1 KB 257 , Stable J. took the same view. That is also the view of the Chief Justice. It is in accord with Dixon v. Bell (1816) 1 Stark 287 (171 ER 475) and also with the seduction cases where medical expenses were allowed, although damages were there so much at large that perhaps little reliance can be put upon them. The other ground on which wages paid during incapacity have been regarded as recoverable is that they are some measure of the master's loss (per Denning L.J. and Parker L.J. in Hambrook's Case) (1956) 2 QB 641 . In some cases, however, the loss would seem to be more directly and properly measured by the wages of a substitute or payments at overtime rates made to other servants. The question of the measure of damages in this form of action has become entangled with a problem of the damages which an injured servant can himself recover when he has had sick pay, and when he has not had to pay his own medical expenses but has been treated in a public hospital or at the expense of his employer. The problem has become important largely because ambulances, hospitals and health services give assistance and treatment to injured people without charge; but they, like benevolent employers, are not prepared to extend their charity to alleviating the obligations of tortfeasors. The result has been a brood of devices, misshapen creatures, such as gifts which may not be retainable and loans which may not have to be repaid. I would respectfully agree with what my brother Fullagar has said on some aspects of the matter in Blundell v. Musgrave (1956) 96 CLR 73, at p 94 . That question is, however, I think, really distinct from the quantum of damage in an action per quod servitium amisit, although the two questions can necessarily become involved. There are some difficulties in reconciling all the decisions such as Allen v. Waters &Co. (1935) 1 KB 200 ; Receiver for the Metropolitan Police District v. Tatum (1948) 2 KB 68 ; Berman v. Occhipinti (1954) 1 DLR 560 ; Myers v. Hoffman (1956) 1 DLR (2d), 272 ; Blundell v. Musgrave (1956) 96 CLR 73 and the Attorney-General for N.S.W. v. Perpetual Trustee Co. (Ltd.) (1952) 85 CLR, at pp 289-293 (per Fullagar J.). As I have said, it is not necessary to determine these questions in this case. I incline to the view that, in general, moneys which a master became legally obliged to pay to or for his servant by reason of an injury incapacitating the servant are recoverable by the master in an action against the wrongdoer - and that (apart from special statutory provisions) the only form which such an action could take would be the common law action per quod servitium amisit, such damages being consequential upon the loss of servitium. It is of course immaterial that they might not have been foreseen by the wrongdoer. "In the cases of claims in tort, damages are constantly given for consequences of which the defendant had no notice. You negligently run down a shabby-looking man in the street, and he turns out to be a millionaire engaged in a very profitable business which the accident disables him from carrying on; or you negligently and ignorantly injure the favourite for the Derby whereby he cannot run. You have to pay damages resulting from the circumstances of which you have no notice. You have to pay the actual loss to the man or his goods at the time of the tort." (per Scrutton L.J. in The Arpad, (1934) P. 189, at p. 202). (at p463)

17. In Hambrook's Case (1956) 2 QB 641 reference was made to the anomaly which provisions for the apportionment of liability and damages in negligence can create in actions per quod servitium amisit. But that is the result of recent statute law. It does not allow us to curtail common law rights to which it has no application. The result may be anomalous. If so the legislature can remedy it if it wishes to. (at p463)

18. I do not think it necessary that I examine the exact nature of the employment of a railway servant in New South Wales. The relevant provisions of the Government Railways Act are referred to in the judgment of my brother Kitto. For reasons which the Chief Justice and he have given, the relationship between the Commissioner and an engine driver is that of master and servant. An engine driver is not "the holder of a public office". In these days when the activities of governments have entered into new and larger fields, and when government ownership and control, in varying degrees, of undertakings formerly the concern of private industry is constantly expanding, there seems to be no justification for describing all government employees, for present purposes, as the holders of public offices. The Crown has in the past claimed privileges as a litigant. It has not foregone the ordinary rights of a subject. To-day the state by its instrumentalities often engages in industry of the same nature as that being conducted by subjects. In relation to its servants in such undertakings there seems to be no ground for regarding the Crown as deprived of remedies which subjects have. (at p463)

19. For the reasons I have given I respectfully agree with the Chief Justice and with my brothers Kitto, Taylor and Menzies and with Owen J. in thinking that the action per quod servitium amisit is not limited to the cases of domestic servants in the way the Court of Appeal has held it to be. The Chief Justice in his learned survey has, I venture to think, shown convincingly that it was not so limited in the past and that if it is to be so limited now it will be by a departure from hitherto accepted law. For reasons that he has given he, nevertheless, would dismiss this appeal. I feel, however, that we should follow a different course. In a passage in Wright v. Wright (1948) 77 CLR 191, at p 210 , which it is unnecessary to set out, the Chief Justice has indicated the difficulties which arise in circumstances such as this where, in relation to a rule of the common law, our views differ from those of courts in England. In this case, I consider that to limit the cause of action on which the plaintiff relies to injuries to menial and domestic servants would be to create a further anomaly in the law, that such a limitation is not demanded by social needs, and is not supported by authority, logic, precedent or history. I would therefore allow the appeal. (at p464)

Orders

Appeal allowed. Discharge order of the Full Court of the Supreme Court of New South Wales. In lieu thereof order that the appeal from the District Court to the Supreme Court be dismissed. Restore the verdict and judgment for the plaintiff in the sum of 148 pounds 19s. 3d. In pursuance of the order granting special leave order that the appellant pays the respondent his costs of the appeal to this Court.