Australian Air Force-Relation between Crown and member of defence forces- Nature of action per quod servitium amisit-Measure of damages-Air Force Act 1923-1941 (No. 33 of 1923-No. 12 of 1941)-Air Force Regulations (S.R. 1927 No. 161-1941 No. 228), regs. 31, 36, 94, 95.

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

So held by Rich, Starke and McTiernan JJ. (Latham C.J. and Williams J. dissenting).

Nature of the relationship between the Crown and a member of the defence McTiernan and Nature of the action per quod servitium amisit and measure of damages Decision of the Supreme Court of Queensland (Philp J.): The Commonwealth V. Quince, (1943) Q.S.R. 199, by majority, affirmed.

APPEAL from the Supreme Court of Queensland.

An action was brought in the Supreme Court of Queensland by the Commonwealth of Australia against William Charles Quince and his wife, for damages for loss and expenses to the Commonwealth consequent upon injuries sustained by Ronald Hugh Rowland, a member of the Royal Australian Air Force, by reason of the negligent

68 CLR 228

driving by Quince of a motor car on 7th October 1941. Mrs. Quince was the owner of the motor car and as such she had a responsibility under S. 14 of the Traffic Acts 1905 to 1933 (Q.) for damage resulting from the negligence of the driver of the car.

On 7th October 1941 Rowland was riding on the pillion seat of QUINCE.

a motor cycle with which the motor car, then being driven along a public road by Quince, came into collision. As a result of the collision Rowland was thrown to the ground and his left femur and tibia were fractured.

He received medical treatment for his injuries at military hospitals from the date of the accident until the date of his discharge from the Air Force on 22nd December 1942, and thereafter he continued to receive treatment as an outpatient. Until his discharge he con- tinued to receive pay and allowances from the Commonwealth. At the time of the accident Rowland was not in possession of a leave pass, but the secretary of the Department of Air, by letter, informed the chairman of the Repatriation Commission that in view of the facts that a leave pass would have been signed had Rowland applied for the same; that he had finished his duties for the day and that he was on "stand down" and was travelling from his place of employment at the time when the accident happened, it was con- sidered that substantially an application by Rowland for a pension fell within reg. 6 of the National Security (War Pensions and Repatriation Benefits) Regulations. Rowland was granted a pension.

The trial judge…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Commonwealth v Quince

Details

AGLC: Commonwealth v Quince [1944] HCA 1
Case: [1944] HCA 1
Decision Date: 25 February 1944

CaseChat Overview and Summary

The Commonwealth of Australia appealed to the High Court of Australia against a decision of the Supreme Court of Queensland. The Commonwealth had sued the respondents, Mr. and Mrs. Quince, for damages arising from injuries sustained by Ronald Hugh Rowland, a member of the Royal Australian Air Force, due to Mr. Quince's negligent driving. The Commonwealth sought to recover expenses incurred for Rowland's pay, medical treatment, and pension, as well as the cost of damaged clothing, on the basis of the common law action of *per quod servitium amisit*, which allows a master to sue for the loss of a servant's services.

The central legal issue before the High Court was whether the Crown, as the employer of a member of the defence forces, could maintain an action *per quod servitium amisit* for the loss of that member's services due to the tortious act of a third party. This required the Court to determine the nature of the relationship between the Crown and a member of the Royal Australian Air Force, and whether this relationship constituted a master-servant relationship for the purposes of this specific legal action, even in the absence of a traditional contract of service.

A majority of the High Court (Rich, Starke, and McTiernan JJ.) held that the action *per quod servitium amisit* does not lie at the suit of the Crown in respect of the loss of services of a member of the Royal Australian Air Force. The Court reasoned that while an airman is bound by law to serve the Crown, this obligation arises from statute and the oath of enlistment, rather than from a contract of service in the traditional sense. The historical basis of the *per quod servitium amisit* action, rooted in a quasi-proprietary interest in a servant's services, did not extend to the relationship between the Crown and its military personnel, which was characterised by statutory obligation and the Crown's prerogative to dismiss. Therefore, the Commonwealth was not entitled to recover damages for the loss of Rowland's services.

The High Court, by majority, affirmed the decision of the Supreme Court of Queensland. The appeal was dismissed, except in relation to the claim for damaged clothing, which was treated as a separate cause of action and for which judgment had already been given in favour of the Commonwealth.

Orders