Commonwealth v Quince

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.