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High Court of Australia |
COMMISSIONER FOR RAILWAYS (N.S.W.) v. SCOTT [1959] HCA 29; (1959) 102 CLR 392
Master and Servant
High Court of Australia
Dixon C.J.(1), McTiernan(2), Fullagar(3), Kitto(4), Taylor(5), Menzies(6) and
Windeyer(7) JJ.
CATCHWORDS
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.
HEARING
Sydney, 1958, November 19-21,DECISION
July 1, 1959.2. 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] HCA 40; (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] EngR 247; (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] HCA 2; (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 [1572] EngR 315; (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 [1572] EngR 315; (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] EngR 302; (1840) 11 Ad & El 301 (113 ER 429) ; Martinez v. Gerber [1841] EngR 707; (1841) 3 Man & G 88, at p 89 [1841] EngR 707; (133 ER 1069) ; Alton v. Midland Railway Co. (1865) 19 CB (NS) 212, at p 213 [1859] EngR 980; (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] HCA 66; (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] HCA 2; (1952) 85 CLR 237 I thought that Martinez v. Gerber [1841] EngR 707; (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] HCA 1; (1944) 68 CLR 227 that the action did not lie. It appears that the Privy Council did not regard Martinez v. Gerber [1841] EngR 707; (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] EngR 707; (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] HCA 9; (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] HCA 50; (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] HCA 1; (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] HCA 1; [1944] HCA 1; (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] HCA 66; (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] EngR 1023; (1826) 2 Car & P 292, at pp 292, 293 [1826] EngR 1023; (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. [1854] EngR 538; (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. [1854] EngR 538; (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] HCA 1; (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] EngR 128; (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] EngR 501; (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 [1849] EngR 738; (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 [1572] EngR 315; (1612) 9 Co Rep 111b, 113a [1572] EngR 315; (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] HCA 9; (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] EngR 707; (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] EngR 1038; (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] EngR 777; (1825) 4 B & C 660, at p 663 [1825] EngR 777; (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] HCA 1; (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] HCA 1; (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] HCA 2; (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] HCA 1; (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] HCA 1; (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] EngR 707; (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] EngR 707; (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] EngR 707; (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] EngR 707; (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)
2. In deciding as they did, the majority of the Full Court followed certain observations of Denning L.J. and Parker L.J. in Inland Revenue Commissioners v. Hambrook (1956) 2 QB 641 which their Lordships considered were not only supported by statements from the opinion of the Privy Council delivered by Viscount Simonds in Attorney-General for New South Wales v. Perpetual Trustee Co. (Ltd.) (1955) AC 457; (1955) 92 CLR 113 but laid down the law in accordance with modern rather than obsolete conceptions. Thus Denning L.J. 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. A servant has long since ceased to be regarded as a slave. It is time he ceased to be looked upon as a chattel. He should be looked upon as a free human being, and not less so when he is a civil servant." (1956) 2 QB, at p 666 . (at p428)
3. Since 1935 there has been a series of cases and articles which it is not necessary to enumerate which have led to a close examination of what has been described as this anomalous action and I gratefully accept the results of the researches that others have made. In Admiralty Commissioners v. S.S. Amerika (1917) AC 38 Lord Sumner said:- "I do not know, and doubt if it can now be ascertained, when or pursuant to what theory this special right of the master in relation to his servant was first established. The inquiry belongs to history rather than to positive law" (1917) AC, at p 54 . It seems to me that research has not established the theory to which Lord Sumner referred although general statements are not wanting that the action arose out of the proprietary (or possessory) right that a master had in a servant in ancient and mediaeval times. If this be so the action is not in any way singular for so it seems did other accepted rules of law relating to the relationship of master and servant and to the effect of that relationship on strangers. Thus in Lumley v. Gye [1853] EngR 15; (1853) 2 E & B 216 (118 ER 749) , Willes for the defendant argued as follows:- "The relation of master and servant is peculiar; and, though it originates in a contract between the employer and the employed, it gives rise to rights and liabilities, on the part of the master, different from those which would result from any other contract. Thus the master is liable for the negligence of his servant, whilst an ordinary contractor is not liable for that of the person with whom he contracts. And a master may lawfully defend his servant when a contractor may not defend his contractee. And so a master may bring an action for enticing away his servant. But these are anomalies, having their origin in times when slavery existed: they are intelligible on the supposition that the servant is the property of his master: and, though they have been continued long after all but free service has ceased, they are still confined to cases where the relation of master and servant, in the strict sense, exists." (1853) 2 E & B, at p 218 (118 ER, at p 750) . Although the anomalous character of the action per quod servitium amisit has been the subject of judicial comment - see for instance Admiralty Commissioners v. S.S. Amerika (1917) AC 38 , per Lord Parker of Waddington (1917) AC, at pp 42, 43 , and per Lord Sumner (1917) AC, at pp 54-60 ; Attorney-General for New South Wales v. Perpetual Trustee Co. (Ltd.) (1952) 85 CLR 237; (1955) AC 457; (1955) 92 CLR 113 , per Fullagar J. (1952) 85 CLR, at pp 283, 288 and per Viscount Simonds (1955) AC, at p 490; (1955) 92 CLR, at p 130 - I do not think that what has been said gives any warrant for what I might describe as judicial reduction of the cause of action. Thus Lord Parker said:- "This House, however, is bound to administer the law as it finds it. The mere fact that the law involves some anomaly is immaterial unless it be clear that the anomaly has been introduced by erroneous judicial decision" (1917) AC, at p 43 . Lord Sumner was no less anxious to find the existing law and administer it; Viscount Simonds' warning was against any extension of the law. He said:- "Their Lordships, differing with great respect upon this part of the case from the judgment of Latham C.J. in Quince's Case [1944] HCA 1; (1944) 68 CLR 227 and from Dixon C.J. and Williams J. in the present case, think that this form of action should not be extended beyond the limits to which it has been carried by binding authority or at least by authority long recognized as stating the law." (1955) AC, at p 490; (1955) 92 CLR, at pp 129, 130 . The point to be observed is that what has evolved is a rule of law to be applied, not a principle of law to be developed. (at p429)
4. There is little to be found in the early cases to suggest that the action lay only in respect of household servants; but perhaps it would be surprising if there were, because in mediaeval times most if not all servants would belong to the house or what has been described as the "familia" of the master; in particular it would seem that apprentices did so belong. The statements of the law were, it seems, in general terms to the effect that a master has a remedy when, by the wrongful act of another, a servant has been taken away or injured so that the master has lost his services and that was so notwithstanding that the servant was not retained but served at will. After servants were to be found outside the household, it seems that no allegation had to be made of the nature of the services; indeed in many cases service was alleged merely as a fact. Sometimes the allegation did disclose that the servant was a household servant, e.g. "daughter and servant", and in one case, the seduction case referred to by Denning L.J. in Inland Revenue Commissioners v. Hambrook (1956) 2 QB 641 , the declaration went further and described the daughter as a "menial servant"- Bennett v. Allcott (1787) 2 TR 166 (100 ER 90) . In other cases the description of the services would suggest the contrary, e.g. Randle v. Dean (1700) 2 Lut 1496 (125 ER 824) , where the servants beaten were described as "laborantes & negotiantes" and the damage alleged was to the business ("negotia") of the master. The case quoted by Mr. Gareth Jones in 74 L.Q.R. 39, at p. 54 from John Clayton's Reports and Pleas of Assizes at Yorke affords one instance where the fact that the servant was not an inmate of the master's house was, it seems, the ground for holding that the action was not maintainable, and in the course of his most helpful argument, Mr. Holmes brought to our attention an article published in 1888 that had escaped notice in the earlier cases. The article, which is of great learning, is entitled Interference with Social Relations; it was first published in 21 American Law Review and was reprinted in (1888) Irish LT 56 and was apparently written by Professor Wigmore. It shows that the action for loss of services already existed in the time of Bracton and applies to all who served the plaintiff, "famulorum et servorum et huiusmodi". The learned author says later:- "The civil position of menials developed and altered, but the action always applied to everyone rendering personal services - in the stricter sense. (The line was drawn, for instance, between a bailiff (Fitzh. N.B. 94 G, note a) and a friar in an abbey (37 H. 6, 7), or a 'fermour' (Bellewe Trespass, 13.) . . . ).". This statement does suggest that there were some servants in respect of whose service the action did not lie, but the author, by the time of writing, considered that the action lay in respect of violence to servants at will (including all who render industrial services to the plaintiff on his premises) and to servants under contract. (at p431)
5. The first and, prior to Inland Revenue Commissioners v. Hambrook (1956) 2 QB 641 , the only case where it was clearly suggested that the action did not lie unless the servant injured was a menial servant was Taylor v. Neri (1795) 1 Esp 386 (170 ER 393) . In that case the plaintiff, who was the manager of a place of public entertainment, sued the defendant for beating a performer and so preventing him from singing, and was non-suited on the ground that the performer was not a servant. In the course of the case, Eyre C.J. said "he did not think the Court had ever gone further than the case of a menial servant" (1795) 1 Esp 386 (170 ER 393) and "if the present action could be supported, every man, whose servant, whether domestic or not, was kept away a day from his business, could maintain an action" (1795) 1 Esp, at pp 386, 387 (170 ER, at p 394) . This decision was criticized in Lumley v. Gye [1853] EngR 15; (1853) 2 E & B 216 (118 ER 749) , by Crompton J. (1853) 2 E & B, at p 228 (118 ER, at p 754) , Erle J. (1853) 2 E & B, at p 233 (118 ER, at p 755) and Wightman J. (1853) 2 E & B, at p 244 (118 ER, at p 759) , but the criticism was directed in the main to the finding that the performer was not a servant rather than to the matter of present importance. However, what Wightman J. said is pertinent: - "The case was very little discussed, was a decision at Nisi prius, and does not appear to have undergone much consideration" (1853) 2 E & B, at p 244 (118 ER, at p 759) . Nevertheless the statement of Eyre C.J. that "he did not think the Court had ever gone further than the case of a menial servant" (1795) 1 Esp 386 (170 ER 393) demands close examination of any authorities which might support or contradict what was said. (at p431)
6. In the consideration of the action per quod servitium amisit attention has repeatedly been paid to the treatment of the subject of masters and servants by Sir William Blackstone in the first volume of his Commentaries, pp. 425-429 published in the middle of the eighteenth century, and Denning L.J. in Inland Revenue Commissioners v. Hambrook (1956) 2 QB 641 draws the following conclusion from his examination of the passage: - "He seems to have considered a master to have a property in his menial servants, but not in others", and adds: - "That this was the general opinion of the time appears from Taylor v. Neri" (1956) 2 QB, at p 663 . I have not been able to come to the same conclusion and with respect I find nothing in the passage that supports the view that the action per quod servitium amisit was, when Sir William wrote, limited to menial servants. (at p431)
7. Sir William Blackstone divides servants into four sorts: (1) menial servants, i.e. domestics, (2) apprentices, (3) labourers, and (4) superior servants such as stewards, factors and bailiffs; he then discusses the character of each species. Sir William, after elaborating his classification, turns to consider how strangers may be affected by the relation of master and servant and he lists four matters: (1) the right of a master to maintain his servant's litigation; (2) the action per quod servitium amisit as to which he says "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" and cites Robert Marys's Case [1572] EngR 315; (1612) 9 Co Rep 111b (77 ER 895) ; (3) the right of the master to justify an assault in defence of his servant and of a servant in defence of his master; and (4) the master's action for damages in the event of his servant leaving him and going to another. This passage then appears: - "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." This passage seems to me to relate not merely to servants of the first sort, i.e., menials or domestics, but to be of general application. Moreover, to use it to support the view that the action per quod servitium amisit was limited to the first category i.e., menials or domestics, encounters the difficulty that the action clearly enough lay in respect of the second class, i.e., apprentices. Further it is to be observed that the action per quod servitium amisit is considered as but one of four matters and there would appear to be no good reason for treating it separately from the other three and confining it to one sort of servant. If, as it seems, it was that in mediaeval times servants were usually connected with the master's houshold and while that was so laws developed with regard to the relationship of master and servant between themselves and with strangers, it would have been possible at a later time when servants were to be found outside the household to confine the operation of those laws to household servants; but this course has not been followed generally and the laws so developed have been applied to all those who, at the relevant time, were masters and servants. In principle, there would seem to be no reason why this should not be true of the action per quod servitium amisit and if it be not so it should be because of some authority or authoritative practice that can now be traced; but, apart from Taylor v. Neri (1795) 1 Esp 386 (170 ER 393) , I find nothing in the eighteenth century to support the statement of Denning L.J. in Inland Revenue Commissioners v. Hambrook (1956) 2 QB 641 when, after referring to earlier authorities which did not limit the servants in respect of whose injuries the action lay to any particular category, his Lordship said:- "The eighteenth century sees an important development. We find that the action per quod has become confined to menial servants and apprentices, those who lived in the household as part of the family, for the very good reason that they alone could then be considered as the property of the master." (1956) 2 QB, at pp 662, 663 . Furthermore, by the eighteenth century the conception that a master had any property in a servant, domestic or otherwise, would seem to have become outmoded and it seems probable that in using the language cited, his Lordship had in mind the words of Sir William Blackstone which he cited a little later, viz. "the property that every man has in the service of his domestics; acquired by the contract of hiring, and purchased by the giving of wages", a theory that would seemingly apply to every case where a contract of hiring was followed by the payment of wages. (at p433)
8. In the nineteenth century, the most significant authority is Martinez v. Gerber [1841] EngR 707; (1841) 3 Man & G 88 (133 ER 1069) , which was the decision of the Court of Common Pleas, Tindal C.J., Coltman, Erskine and Maule JJ. sitting in banc. The action was brought in respect of injuries to "the servant and traveller" of the plaintiffs upon a general allegation of service. Unless it be limited by the assumption (for which no foundation appears) that the traveller was a domestic or menial servant, the decision that the action lay is inconsistent with the observation of Eyre C.J. in Taylor v. Neri (1795) 1 Esp 386 (170 ER 393) . Alton v. The Midland Railway Co. [1859] EngR 980; (1865) 19 CB (NS) 213 (144 ER 768) (the actual decision in which is no longer generally accepted) is also informative upon the question under discussion because again no objection was taken to an action per quod servitium amisit by brewers in respect of the loss of services of a traveller who was clearly enough not a menial or a household servant. Erle C.J. said:- "I do not go into the origin of the master's right to sue for a wrong done to his servant, or inquire whether, as Mr. Smith puts it (Master and Servant, 86), it may have originated at a time when the master claimed a property in the services of his servant. I take the law as I find it: and I find no case where an action has been sustained by the master for consequential damage for an injury done to his servant, where that injury arose from the breach of a contract between the servant and the defendant." (1865) 19 CB (NS), at p 237 (144 ER, at p 778) . Willes J. said:- "It must be admitted by the defendants that a long series of authorities has established that a master may sue for loss of services caused by a pure wrong, a trespass, to his servant, as by beating him" (1865) 19 CB (NS), at p 239 (144 ER, at p 779) . The nineteenth century cases, it seems, are at variance with what was said at the end of the eighteenth century in Taylor v. Neri (1795) 1 Esp 386 (170 ER 393) . (at p434)
9. It is not, I think, necessary to refer to the cases decided in the twentieth century before Attorney-General for New South Wales v. Perpetual Trustee Co. (Ltd.) [1952] HCA 2; (1952) 85 CLR 237; (1955) AC 457; (1955) 92 CLR 113 . In this case it was decided that 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 State police force. In this it followed The Commonwealth v. Quince [1944] HCA 1; (1944) 68 CLR 227 where it had been decided that the action does not lie at the suit of the Commonwealth in respect of the loss of the services of a member of the armed forces. In neither case in the High Court is there any suggestion that the action did not lie unless the servant concerned was a menial or a household servant. In his judgment in the later case, Kitto J. follows a course that I would like to adopt. He explains the master's right to the remedy by way of the action per quod servitium amisit as follows:- "the law has perpetuated a notion which originally was a corollary of the ancient conception of the relationship of master and servant as one of status (Mankin v. Scala Theodrome Co. Ltd. (1947) KB 257 ). That conception has gone, but the notion of a right in the master, as a species of property, that others shall not, by their wrongful acts, deprive him of the benefit of the relation between himself and his servant, has not been abandoned." (1952) 85 CLR, at p 295 . His Honour says further that "the action is so rigorously confined to cases of master and servant in that strict sense which formerly connoted a status, that nothing but legislation could now extend it to other cases" (1952) 85 CLR, at p 295 . He finds that in earlier days "at the root of the conception of the master and servant relation was the family, that is to say the familia, the household establishment" (1952) 85 CLR, at p 299 , and adds:- "Of course the widening of the range of private enterprise meant that the link between many kinds of servants and the households of their masters became attenuated and ceased to have any reality; but the relation has remained in the law as one which enables a man in the conduct of his private affairs to avail himself of the services of others who will enter into the appropriate relationship with him for that purpose." (1952) 85 CLR, at p 299 . In the master and servant relationship he finds three elements:- "First, the relationship must entail, on the part of the servant, obedience to orders; secondly, the obedience to orders that is required is obedience to orders in doing work; and, thirdly, the doing of the work must be for the benefit of the master, that is, it must relate to his own affairs." (1952) 85 CLR, at p 299 . The only comment I would make concerns the use of the words "in the conduct of his private affairs" in the penultimate quotation because without some elaboration these words might be thought to limit the relationship of master and servant to "personal" as distinct from "business" affairs. It is apparent, however, from what is said that such a distinction was not intended, for his Honour says:- "But the doing of the work by one person must be required by another as a means whereby that other may attain ends of his own" (1952) 85 CLR, at p 300 and explains this by saying:- "The point is that the power of direction residing in a person must belong to him for the purpose of enabling him to conduct his own affairs; and only if that is the situation is it possible for him to complain that conduct causing him to lose the service is an infringement of a right to enjoy them which he may vindicate in an action per quod servitium amisit." (1952) 85 CLR, at p 300 . This power of a master to direct is then contrasted with that of a foreman or a departmental head. To attempt to put in a sentence the argument outlined by these quotations, I would say that although the origin of the relationship of master and servant was in the household establishment of the master, the conception has widened and it now covers the doing of work by one man for the benefit of another and in obedience to the orders of that other. The conclusion of Kitto J. was that the action lies in a case where that strict relationship is found to exist but in no other. (at p435)
10. Turning to the opinion of the Privy Council delivered by Viscount Simonds (1955) AC 457; (1955) 92 CLR 113 , the words of Eyre C.J. in Taylor v. Neri (1795) 1 Esp 386 (170 ER 393) are cited with the comment:- "It is not clear to what range of service the term 'menial' extended in the judgment of the Chief Justice, but it is difficult to suppose that he was unaware of the limits of the action or that he did not know how far it had gone in cases of enticement and harbouring." (1955) AC, at p 485; (1955) 92 CLR, at p 125 . Martinez v. Gerber [1841] EngR 707; (1841) 3 Man & G 88 (133 ER 1069) was also cited with the comment:- "The decision must, however, 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 . This statement I regard as plain recognition that in the middle of the nineteenth century the law was as it appears from Martinez v. Gerber [1841] EngR 707; (1841) 3 Man & G 88 (133 ER 1069) . In expressing their final opinion their Lordships say:- "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" (1955) AC, at p 489; (1955) 92 CLR, at p 129 . Finally, it is said:- "Their Lordships, differing with great respect upon this part of the case from the judgment of Latham C.J. in Quince's Case [1944] HCA 1; (1944) 68 CLR 227 and from Dixon C.J. and Williams J. in the present case, think that this form of action should not be extended beyond the limits to which it has been carried by binding authority or at least by authority long recognized as stating the law. Their review of the relevant case law shows that, where in recent times it has been extended 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, the extension has been made without argument or deliberation. 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 to the loss of service of one who, if he can be called a servant at all, is the holder of an office which has for centuries been regarded as a public office." (1955) AC, at p 490; (1955) 92 CLR, at pp 129, 130 . I do not think there is any doubt that the effect of this judgment is to confine the action to what is called the domestic relation of master and servant but I do not think that it confines the action to the relationship of master and domestic servant. The contrast is between the relationship of master and servant and the relationship of Government and the holder of a public office and it is significant that their Lordships refer to "the ordinary master and servant relation" (1955) AC, at p 489; (1955) 92 CLR, at p 128 and "the ordinary law of master and servant" (1955) AC, at p 490; (1955) 92 CLR, at p 130 . As I see it, the opinion of their Lordships confirmed the reasoning of Kitto J., the course of which I have already traced. (at p437)
11. Coming now to Inland Revenue Commissioners v. Hambrook (1956) 2 QB 641 , I should say that I accept without reservation the actual decision in the case, but my concern is with the dicta of Denning L.J. and Parker L.J. which would limit the action per quod servitium amisit to members of the master's household or to menial servants of the master. I have already examined the various authorities to which their Lordships refer and at this stage no more is necessary for me to say than that the observations of Eyre C.J. in Taylor v. Neri (1795) 1 Esp 386 (170 ER 393) are expressed tentatively and if they mean that the action was confined to servants of the menial sort, they are, as I have already shown, not consistent with later statements made by great masters of the common law. That case stands alone and in the light of the cases before and after it, I cannot regard it as a foundation sufficient to support the conclusion that the action was so limited. (at p437)
12. Mr. Holmes has also drawn the attention of the Court to Scottish, Canadian and South African authorities that either deny the existence of the action or limit it to menial servants and apprentices. The cases are Readis v. The Clan Line Steamers Ltd. (1925) Scots LT 386, 538 and Allan v. Barclay (1864) 2 M (SC) 873 (Scotland); Myers v. Hoffman (1956) 1 DLR (2d) 272 (Canada); and Union Government v. Ocean Accident and Guarantee Corporation Ltd. (1956) 1 Sth Af LR 577 (South Africa). Such authorities make one pause before saying that the law of England and of Australia is different from the law of Scotland, Canada and South Africa, but although decisions in other jurisdictions inevitably compel careful examination of the relevant English and Australian authorities, such decisions cannot in any way control these authorities or warrant any departure from them. (at p437)
13. My conclusion is, therefore, that the action lies in any case where the relationship between the plaintiff and the person injured is that of master and servant. I add that to attempt to confine it to domestic or to menial servants would be to impose a restriction of an imprecise character which would create further problems of its own; e.g., whether the action still lies in respect of apprentices who are no longer household servants and who are not menial servants according to present-day usage, and if it does, whether it lies at the suit of a company for the loss of the services of an apprentice. Furthermore, it cannot be predicated that, if reform of the law were undertaken by the legislature, the cure of the anomaly would be found in restricting the right rather than in its extension to something that seems to have been within the contemplation of Lord Parker when he referred to the extension of the right so as to cover all loss arising out of inability to perform a contract or otherwise: see Admiralty Commissioners v. S.S. Amerika (1917) AC 38, at p 43 . (at p438)
14. Having reached the foregoing conclusion, it is necessary to decide whether the relationship between the plaintiff and the injured engine driver was that of master and servant. This depends upon the effect of three New South Wales statutes: the Ministry of Transport Act 1932, the Transport (Division of Functions) Act 1932-1956 and the Government Railways Act 1912-1955. The complicated position which arises from the inter-action of these Acts has for present purposes the following salient features: (1) there is in New South Wales a Ministry of Transport under a Minister for Transport, (2) one department in the Ministry is the Department of Railways, (3) that Department is administered by the Commissioner for Railways under the control and direction of the Minister for Transport, and (4) the Commissioner for Railways is by statute a body corporate representing the Crown and having certain powers including that of appointing or employing officers to assist in the execution of the Government Railways Act. (at p438)
15. Mr. Holmes has argued that such officers are not the employees of the Commissioner but are employees of the Department of Railways and that even if such officers in the railways service can be regarded as employees of the Commissioner, the relationship between the Commissioner and such officers is not the ordinary relationship of master and servant but is more like that of departmental head and subordinate officers in the Public Service. (at p438)
16. With some hesitation, I have, for the reasons stated by the Chief Justice and Kitto J., come to the conclusion that this argument should not be acceded to and that there was the relationship of master and servant between the Commissioner and Rogers, the injured train driver, so that the Commissioner is entitled to recover for the loss of the services of the driver occasioned by the injuries which he received by reason of the negligence of Scott. (at p438)
17. As no point has been made of the quantum of damages awarded at the trial by the learned judge of the District Court, I consider, therefore, that the appeal should be allowed and the judgment of the District Court in favour of the Commissioner for 148 pounds 19s. 3d. restored. (at p438)
WINDEYER J. A locomotive driver in the service of the Commissioner for Railways of New South Wales was injured, as a result, it has been held, of the negligence of a motor cyclist. He was for a short time away from duty. During his absence the Commissioner for Railways continued to pay him and also bore the cost of his medical treatment, as was required by s. 100B of the Government Railways Act. The Commissioner now claims to recover from the motor cyclist the money, 148 pounds 19s. 3d., he thus paid. He is, he asserts, entitled to it because he was for a period deprived of the services of his servant by the cyclist's negligence; and he claims that the amount he had to pay pursuant to s. 100B is the measure of his loss. These events in twentieth century Australia seem as remote as could be imagined from life in England in the Middle Ages. But the arguments we heard showed this case as illustrating Maitland's statement that "the forms of action we have buried, but they still rule us from their graves". The difficulty is that the voice from the grave has been heard differently by different people when it speaks the words "per quod servitium amisit". For courts, however, if not for all writers of learned articles, much has now been finally settled by the decision of the Privy Council in Attorney-General for New South Wales v. Perpetual Trustee Co. (Ltd.) (1955) AC 457; (1955) 92 CLR 113 . But their Lordships' judgment, as I read it, does not determine the question in this case, nor compel acceptance of the view of the Court of Appeal in Hambrook's Case (1956) 2 QB 641 , that a master can only sue for loss of services of menial servants. The importance of the question makes it desirable to consider the matter generally, rather than to examine in detail the judgments given in the Supreme Court of New South Wales from which this appeal comes. But I have gained much assistance from them, and especially from the incisive judgment of Owen J. (at p439)
2. In some recent discussions of the scope of the action for loss of servitium it has been stated that the action is out of harmony with the economic and social conditions of to-day. This seems to me to be, in the abstract, a questionable assertion, especially if by such an action an employer is entitled to recover from the wrongdoer medical expenses he paid for, and wages he paid to, an injured servant during his absence from duty. I shall refer later to the debatable question of the damages in such an action. But assuming medical expenses and sick pay to be recoverable, this seems to me not inconsistent with the social and industrial conditions of to-day. An employer's right to be indemnified by a wrongdoer for expenses he has been put to because of the injury of his employee is well recognized in workmen's compensation law. There the amount of compensation paid is recoverable from anyone whose tortious act caused compensable injury: see e.g. in the United Kingdom Workmen's Compensation Act 1925, s. 30(2); and, in New South Wales, Workers' Compensation Act 1926-1954, s. 64. Post Office v. Official Solicitor (1951) 1 All ER 522 arose after payment of workmen's compensation made to a postman by the Post Office had been recovered from the person by whose negligence the postman was injured in a collision with a motor car, not under the statutory provisions but in an action per quod servitium amisit. It happened before Hambrook's Case (1956) 2 QB 641 , and whether the postman was a menial servant was not in question. The present case arises because the engine driver claimed under s. 100B of the Government Railways Act. Had he claimed under the Workers' Compensation Act (N.S.W.), as in the alternative he could have done, no question could have arisen of the appellant's right to recover from the respondent the amount he claims. And no one would, I assume, have thought this was out of harmony with modern conditions. Many employers to-day are bound to pay their employees sick pay and provide their medical expenses if they be injured. Their obligations are largely covered by a widespread and partly compulsory system of insurances. There is no social advantage that I can see in discouraging the assumption by employers of straightforward obligations, or in encouraging resort to devices, described as loans or ex gratia payments, referred to in some of the cases. Moreover there seems to me to be no logic in measuring the total liability of a tortfeasor by whether the person harmed by his wrongful act is or is not a menial servant. Perhaps I have misunderstood one passage in Denning L.J.'s judgment (1956) 2 QB, at p 666 but, with great respect, I do not think that a servant is any the more "looked upon as a free human being" by denying his employer a right of action against a man whose wrongful conduct has caused the employer damage. It will, I feel, be regrettable if the law is to carry an implication that domestic servants are any the less free human beings than are other wage earners or indeed than any other subjects of the Crown. I approach this question without feeling that the action per quod servitium amisit must be looked at askance; without any wish to see its rightful scope enlarged, but without any wish to see its application restricted to certain classes of servants merely because we are living in a world different from that in which the common law had its infancy. The path by which we must approach the problem is a narrow one. The action per quod servitium amisit should not "be extended beyond the limits to which it has been carried by binding authority or at least by authority long recognized as stating the law" (1955) AC, at p 490; (1955) 92 CLR, at p 129 . The only question is what are we to regard as authority long recogni ed as stating the law, and what are the limits which it sets. Some boundaries have been defined by the judgments in Quince's Case (1944) 68 CLR 227 and in Attorney-General for New South Wales v. Perpetual Trustee Co. (Ltd.) (1955) AC 457; (1955) 92 CLR 113 , and it is convenient to consider their application to the present case before coming to the historical considerations discussed by the Court of Appeal in Hambrook's Case (1956) 2 QB 641 . The view of the majority in Quince's Case [1944] HCA 1; (1944) 68 CLR 227 has had the approval of the Privy Council. As I read their Lordships' judgment, they there took as a matter of cardinal importance the distinction between the contractual relationship of master and servant, which is the foundation of a master's right to services to-day, and the essentially different relationship between the Crown and a member of the armed forces. That military and naval service differ essentially from employment under contract with a private employer goes almost without saying. Officers serve according to the tenor of their commissions, soldiers and seamen in accordance with their engagements. None of them has at common law any right of action against the Crown for breach of contract, not even a right to sue for pay; for none of them is employed under an ordinary contract of employment. Since 1694 (5 & 6 Wm. & M. c. 15, s. 2) due attestation has been essential for the valid enlistment of a soldier. Men become soldiers by swearing to serve the Queen, not by taking the Queen's shilling. Once enlisted, members of the naval and military services can be forced to serve according to their engagements. Unlike persons who abandon a private employment, naval and military deserters do not simply break a contract upon pain of paying damages. They commit an offence punishable with severity. Deserters and absentees without leave can be apprehended by the civil authorities and handed over to military custody (see e.g., Army Act, s. 154). Thus the Crown can have absconding soldiers returned to their duty - much as in the Middle Ages a lord had a right to recapture an absconding villein by a writ de nativo habendo. Indeed the peculiar but proud obligations of service in what Blackstone called "the military state" seem to resemble the incidents of servitium based on status more closely than the obligations arising from a contract of private employment. But an action per quod servitium amisit by the King in respect of soldiers rendered unfit for duty would scarcely have been applicable to the feudal array, or to the general levy, or to mercenary men-at-arms whose contracts were ordinarily with their captain; and the Army, as we know it, has existed only since the Restoration. Thus the fact that there is until recent times no record of any action by the Crown for loss of a soldier's services may be a by-product of history rather than a consequence of any conscious legal doctrine. The question assumed importance only with the hazards of mechanized transport after the modern law of negligence had been developed and after the Crown had assumed a liability to disabled soldiers, seamen and airmen. However, so far as members of the forces are concerned, the law has now been placed beyond doubt by the Privy Council's approval of Quince's Case [1944] HCA 1; (1944) 68 CLR 227 . Further speculation on this can concern only academic lawyers not courts. And a constable has been held to be in the same position as a soldier. Do these decisions proceed from any common factor, and one present in the case before us? As I read their Lordships' judgment, soldiers and constables are assimilated because "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" (1955) AC, at p 489; (1955) 92 CLR, at p 129 . They said of the constable that "he is the holder of an office which has for centuries been regarded as a public office" (1955) AC, at p 490; (1955) 92 CLR, at p 130 . Their Lordships were thus looking behind modern police organization to the constables of former times. Once that is done there is surely little room for doubt that an action per quod servitium amisit could not have been brought in respect of such a constable. For who would have sued? Who would have been Dogberry's master to sue for trespass per quod servitium amisit, assuming Dogberry to have been in England not in Messina and, improbably, to have run the risk of violence? The office of petty constable was filled by election in the leet or the tourn (Coke, 4 Inst. 265, and see Comyns Digest under "Leet"). His duty was to preserve the King's peace. The King thus had an interest in him and was directly concerned if, when chosen, he did not take up his office (R v. Bernard [1795] EngR 1457; (1698) 2 Salk 502 (91 ER 429) . But it was in the local community of the parish that he served; and by it he was appointed. Damage could hardly flow from loss of his services, for another parishioner would be chosen in his place. But railway engine drivers cannot boast a like ancestry; and nothing that their Lordships have said makes me think that an engine driver in the service of the New South Wales Government Railways, even if he can properly be considered as a Crown servant, is to be ranked with members of the armed forces and constables. If the rule had been simply that the Crown can never bring an action per quod servitium amisit, then the examination which Viscount Simonds' judgment makes of the office of a constable would have been unnecessary. (at p443)
3. The argument before us turned mainly, however, on the proposition that the action lay only in the case of menial or domestic servants. For this certain passages in the judgment of the Privy Council in the Policeman's Case (1955) AC 457; (1955) 92 CLR 113 and Hambrook's Case (1956) 2 QB641 were relied on. As to the former: I am not satisfied that their Lordships, in distinguishing 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 , were making a distinction between domestic servants on the one hand and all other servants, public or private, on the other. The distinction they make seems to be between public office holders on the one hand, and servants in private employment on the other. The word "domestic" seems to have been used in the sense in which Blackstone and others have used it, when distinguishing between men's public duties and their private affairs. Had their Lordships thought that the action could be brought only in the case of domestic servants, the answer in the Policeman's Case (1955) AC 457; (1955) 92 CLR 113 would have been simple, for a police constable is surely not a domestic servant. (at p443)
4. Turning then to the decision in Hambrook's Case (1956) 2 QB 641 : With great respect, I do not find the view of the Court of Appeal that the action lies only in the case of menial servants convincing. Denning L.J., as he then was, says that ". . . the eighteenth century sees an important development. We find that the action per quod has become confined to menial servants and apprentices, those who lived in the household as part of the family, for the very good reason that they alone could then be considered as the property of the master." (1956) 2 QB at pp 662, 663 . For this, reliance is placed upon a passage in Blackstone. For reasons given by my brother Menzies and by Owen J. in the Supreme Court, the passage, when read in its context, seems hardly to support the proposition. If it does, it is worth noting that Professor Plucknett has said of Blackstone that "his history was not very profound, for like so many practising lawyers of that time (and later) he expected little more in history than a plausibility at first sight". (Concise History of the Common Law, 5th ed. (1956), p. 286). Somewhat in contrast with the reference by Denning L.J. to "an important development" in the eighteenth century confining the action to menial servants, Parker L.J., as he then was, said that "the cases in which a master can recover damages for the loss of services of an injured servant were until the end of the eighteenth century confined to cases of menial servants" (1956) 2 QB, at p 671 . Both statements are based on what Eyre C.J. said in Taylor v. Neri (1795) 1 Esp 386 (170 ER 393) , and on an assumption that Bennet v. Allcott (1787) 2 TR 166 (100 ER 90) establishes that declarations in actions per quod servitium amisit in the eighteenth century commonly described the servant as a menial. Taylor v. Neri (1795) 1 Esp 386 (170 ER 393) is, however, inconclusive. Until recently it has been seldom noticed judicially, and then with dubious regard. And as for Bennett v. Allcott (1787) 2 TR 166 (100 ER 90) , far from being typical, the declaration there seems to be unique in using the words menial servant. There were possibly two reasons for doing so in that case. Firstly, as Buller J. observed, the action was not in case for seduction, but in trespass for breaking and entering the plaintiff's house (1787) 2 TR, at pp 167, 168 (100 ER, at p 91) . The seducing of the plaintiff's daughter had thus strictly to be considered as consequential. In an action which in law depended primarily on the invasion of a dwelling-place, it may well have seemed prudent to allege that the daughter was an inmate. Secondly, she was an adult; and there were decisions - referred to in the arguments in that case and in Dean v. Peel (1804) 5 East 45 (102 ER 986) - that, in a father's action for seduction of a daughter, there was a distinction between daughters of full age and daughters under age; and, in connexion with that distinction, whether or not the daughter was living at home could be a material circumstance. The essential allegation in an action for loss of services was, however, simply that the injured party was the servant of the plaintiff. This had to be proved at the trial. It could be proved by establishing a situation from which the plaintiff's right to services could be inferred. In the case of a child, whether son or daughter, old enough to perform services and not forisfamiliated, this right would be readily inferred from the fact that the child was living in the family home and accustomed to perform some household tasks (Hall v. Hollander [1825] EngR 777; (1825) 4 B & C 660 (107 ER 1206) ; Evans v. Walton (1867) LR 2 CP 615 ). But it does not follow from the fact that dependent membership of the plaintiff's household would readily, and sometimes almost fictitiously, establish a right to servitium, that a right to servitium could only exist in the case of persons living under the plaintiff's roof. Apart from the equivocal observations in Taylor v. Neri (1795) 1 Esp 386 (170 ER 393) and the unusual declaration in Bennett v. Allcott (1787) 2 TR 166 (100 ER 90) , no eighteenth century case seems to have been discovered to support the view of the Court of Appeal in Hambrook's Case (1956) 2 QB 641 . In the nineteenth century Martinez v. Gerber [1841] EngR 707; (1841) 3 Man & G 88 (133 ER 1069) is against it; and see also Alton v. Midland Railway Co. [1859] EngR 980; (1865) 19 CB (NS) 213 (144 ER 768) . It seems to me artificial to treat the decision in Martinez v. Gerber [1841] EngR 707; (1841) 3 Man & G 88 (133 ER 1069) as consistent with the view that the action was confined to menial servants by supposing that the traveller in Martinez v. Gerber [1841] EngR 707; (1841) 3 Man & G 88 (133 ER 1069) must have lived in the plaintiff's house. There is nothing to suggest that he did; and moreover the Privy Council recognized that Martinez v. Gerber [1841] EngR 707; (1841) 3 Man & G 88 (133 ER 1069) "probably represents some advance from the limit suggested by Eyre C.J." (1955) AC, at p 486; (1955) 92 CLR, at p 126 . The decision of the Common Pleas in Martinez v. Gerber [1841] EngR 707; (1841) 3 Man & G 88 (133 ER 1069) in 1841 may, I think, be described as "an authority long recognized as stating the law" (1955) AC, at p 490; (1955) 92 CLR, at pp 129, 130 . But surely the same cannot be said of remarks of Eyre C.J. in Taylor v. Neri (1795) 1 Esp 386 (170 ER 393) at nisi prius in 1795. Until recently, cases were heard and judgments given on the unquestioned assumption that any master had a right to recover damages for the loss of the services of any servant. This assumption we now know was mistaken in the case of members of the forces and constables, so that the decisions in Attorney-General v. Valle-Jones (1935) 2 KB 209 and Bradford Corporation v. Webster (1920) 2 KB 135 , are erroneous. But was the assumption wrong generally? Does the history of the action, to which the Court of Appeal referred, really support the view that the action lies only in the case of injuries to menial servants? The only direct support for that view which I have come across is a statement in a case mentioned in the American articles reprinted in the Irish Law Times to which we were referred. It is Burgess v. Carpenter (1870) 2 SC 7; 16 Am Rep 643 , a decision of the Supreme Court of South Carolina in 1870. The case arose out of a transaction which in Australia would be called a share-farming agreement, which clearly is not a contract of service. But in the course of his judgment Wright J. said: "At common law, in England, the master might bring an action for damages against a third party for any loss he might have sustained by reason of such party unlawfully injuring or interfering with his servant or servants; but this power, given the master, was only to be exercised toward menial servants - domestics intra moenia. It was a relation which the common law classed with the relation of 'parent and child'. The master was held to stand in loco parentis." (1870) 2 SC, at p 9; 16 Am Rep, at p 645 . The argument in the case is not reported, and there is no indication of what Wright J. relied upon to support this statement. Apparently it was not on Kent's Commentaries. Kent, after some comments on Leward v. Basely [1792] EngR 1421; (1695) 1 Ld Raym 62 (91 ER 937) had said, "In England there seems to be a distinction between menial and some other servants, but I know of no legal distinction between menial, or domestic and other hired servants" (Commentaries, 10th ed. (1860) vol. 2, p. 308); but otherwise he had not dealt with the matter. Chancellor Kent's statement (which appears also in the earlier editions) had been quoted by the Supreme Court of New York in Woodward v. Washburn (1846) 3 Denio 369 . That was an action by a merchant for the loss of the services of a clerk. The clerk had gone to the bank on his master's business and had been shut in at closing time and not released for half an hour. The damages were nominal, assessed at six cents; but the matter came before the Court of Error on the question of principle, it being argued that as the servant was a clerk and not an apprentice, or otherwise a person to whom his master stood in loco parentis, the action would not lie. But the court in a careful judgment held that the action lay simply on the ground that the clerk was a servant. (at p446)
5. The argument before us proceeded on the basis of certain assumptions which seemed to be the foundation of the judgments of the Court of Appeal and in particular of the passage in the judgment of Denning L.J. to which I have referred. They are, first, that the action per quod originated in the violation of a proprietary right a master had in his servants; and secondly, that in the eighteenth century menial servants and apprentices could be considered as the property of their masters, and therefore they were a remnant in respect of whom the action could then still be brought. But, for the reasons I shall give, the first assumption seems to me mistaken, or at least an oversimplification of history. And as to the second, it would, I think, be taking what his Lordship said too literally to suppose that he meant that in the eighteenth century lawyers regarded menial servants or apprentices as their masters' property. They, apprentices especially, had certainly a special personal relationship to their masters. But the arguments in Sommersett's Case (1772) 20 St Tr 1 would have lost their force if servants in England had then been considered as in law the property of their masters. Moreover, in London at all events, domestic servants in the eighteenth century were noted for their independent attitude: see Lecky, History of England in the Eighteenth Century (1909) vol. ii, p. 218, where there are references to, inter alia, Defoe's pamphlet The Insolence and Unsufferable Behaviour of Servants in England. Furthermore, if in the eighteenth century the action survived only in the case of those who were then still considered as their master's property, why should it survive at all to-day, when no servant is considered his master's property? (at p447)
6. One may respectfully, and wholeheartedly, accept Lord Goddard's statement, made in a different context (Terrell v. Secretary of State for the Colonies (1953) 2 QB 482 that " . . . once a doctrine has become a rule of law, the court is bound to apply it without inquiring into its origin" (1953) 2 QB, at p 498 . But to say that an accepted rule of law is not to be overthrown by showing that history would not support it is one thing. To say that a rule, newly enunciated and professedly based on history, should be followed without examination of its alleged historical foundation, is quite another. If we could take our stand at any point of time and say: here developing doctrine has hardened into dogma, here is a rule of law authoritatively declared, then the task would be easy. But the Court of Appeal suggests that decisions in the twentieth century are mistaken and that those in the nineteenth century are to be disregarded. So, as the eighteenth century appears to have produced no indubitable statement, we must, it seems, look further back and accept the risks of historical inquiry. Historical inquiry does, I am well aware, have risks, as Holdsworth's trenchant comments on the judgments in Admiralty Commissioners v. S.S. Amerika (1917) AC 38 , bear witness. I have, however, had the great advantage of reading the judgment of the Chief Justice in this case, and guided by it I have, I hope, avoided pitfalls in such researches as I have made. My researches, much less extensive than his, have revealed nothing that conflicts with his conclusions. But I may refer briefly to some aspects. (at p447)
7. To discover the remote antecedents of a rule of the common law is not to determine its application to-day. It is necessary to be careful in leapfrogging through the centuries. The Middle Ages were not a time when society or law were static. We must beware too of words appearing in the Year Books when, in a feudal society and a manorial economy, lawyers in the King's Courts were first fashioning the law from writs of trespass. Times change. The meanings of words may change, and to understand and apply them we must keep pace with those changes. We know in a general way what is meant to-day by a domestic servant; and perhaps, too, we know what Eyre C.J. in 1795 and the Court of Appeal in 1956 meant by a menial servant. But the meaning of "menial" has not been constant and is not precise. In part, this is the consequence of mistaken etymology, in part because the word has gathered a disparaging sense, a suggestion of inferiority. The denotation of the word is now debatable. A governess living in the home has been held to be not a menial servant (Todd v. Kerrich [1852] EngR 930; (1852) 8 Ex 151 (155 ER 1298) , whereas a head gardener living in a separate house is (Nowlan v. Ablett [1835] EngR 182; (1835) 2 CM & R 54 (150 ER 23) ). The cases are collected in Diamond, Law of Master and Servant, 2nd ed. (1946), pp. 35-37. As the Chief Justice and Kitto J. have pointed out, the word menial is derivatively unconnected with moenia. And courts have on occasions enlarged Blackstone's meaning. In Nicoll v. Greaves [1864] EngR 501; (1864) 17 CB (NS) 27 (144 ER 11) , for example, it was held that a huntsman was a menial servant. Byles J. there rejected the view that menial is synonymous with domestic, and derived the word, correctly, from the now archaic Middle English word meinie. (1864) 17 CB (NS), at pp 37, 38 (144 ER, at p 15) . This meant primarily family, or household, extended to mean a retinue, a body of retainers and dependants. Originally it seems sometimes to have had a meaning not unlike that of the comitatus of the Germans of which Tacitus wrote. In Re Junior Carlton Club (1922) 1 KB 166 , Roche J. apparently accepted the correct derivation of the word menial; but he nevertheless considered that at the present day menial servant "simply means the same as 'domestic' servant - i.e., a person employed within the walls or dwelling or domain of his employer" (1922) 1 KB, at p 169 . This caused Sir Frederick Pollock to put a footnote to the case in the Law Reports (1922) 1 KB, at p 169n (1) stating categorically that "the word is unconnected with moenia". As an engine driver employed by the New South Wales Government Railways is presumably not a menial servant in any sense of the term, none of this matters directly. But it does matter in considering the meaning of early precedents of actions per quod servitium amisit. For it seems that in none of them did the record expressly describe the servant as a menial; neither as far as I am aware, was there any insistence on his being a domestic. Yet both descriptions were well known in the Middle Ages. The word "menial" appears at least three times in the Statute Book. In 28 Ed. I c. 2 (1300) the provisions concerning purveyance refer to the King and the ministers of his household as le Roi e ses ministres de sa meignee. In 1 Ric. II c. 4 (1377), there is a reference to the King's great officers and to his other lesser officers and servants (autres meyndres officers & servantz) in the exchequer and all his other courts and places as well as those of his own meinie (de sa propre meignee). And the Statute of Liveries, 2 Hen. IV c. 21, uses both meynl and meignal in contexts which show that the persons so described were certainly not of humble rank. As to domestics; when a mediaeval lawyer thought it necessary to say that a man was an indwelling household servant he did so. For example in Brouneflete v. Labor (Selden Society, vol. 50 p. 104) an action for trespass, to goods in 1423, the record referred to ministri servientes familiares et officiarii in hospicio . . . commorantes; and, as mentioned later, Fleta speaks of some servants as cum domino commorantes. But in actions per quod servitium amisit, the servants concerned were not, as far as I have discovered, described as commorantes. Therefore, as the Year Book precedents apparently do not limit the kind of servants for whose injuries a master might bring trespass, we are thrown back to consider the denotation at relevant times of various words all later ordinarily translated as "servant." For it is on this that the historical argument largely depends. Was the mediaeval servant, for the loss of whose services his master had an action of trespass, the same sort of person as a lawyer would call a servant? In mediaeval records a master is ordinarily dominus. But various words, Norman-French and Latin, used over some hundreds of years have all been commonly translated as "servant", sometimes with surprising results. For example, in Westcots' translation of Selden's Jani Anglorum Facies Altera, published in 1683, the note on manupastus states, "of this Bracton sets down a Rule for Law that every person, whether free man or servant, either is or ought to be in frankpledge or of some bodies mainpast." The explanation of this - as of much that has been taken as meaning that the mediaeval law of master and servant was a law for slaves - is the result of a combination of linguistic limitations and of Bracton's fondness for Roman doctrine. Bracton sought to describe English institutions in Azo's Latin phrases. He repeated the famous statement that all men are either free or slaves (aut liberi aut servi); and went on to describe the English villeins as if their position was that of Roman slaves; and therefore he called them servi. This was well enough until the Latin was rendered again into English as "servants", as, for example, by the translator of Cowel's Institutes. Cowel in 1603 merely repeated Bracton. But the 1651 translation renders the passage as: "The first and shortest division of Persons is this, That all men are either Free or Servants". Yet by the middle of the seventeenth century villeinage had disappeared and English servants were in law free men. (at p450)
8. Two references to the origin of the action per quod servitium amisit are quoted in the judgment of the Privy Council (1955) AC, at pp 482, 483; (1955) 92 CLR, at p 122 . The first is from Salmond on Torts, 11th ed. (1953), p. 406, where it is said that "In truth the doctrine is a historical relic of the days when a master had a proprietary interest in his servant". The second, less concise, but I venture to think much more accurate, is Sir William Holdsworth's statement that the various mediaeval remedies which a master had in respect of his servants "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" (History of English Law, vol. 8, 2nd ed. (1937), p. 429). I say more accurate, because it will be noticed that Holdsworth does not refer to a proprietary interest in the servant, but in his services. Blackstone also put it in that way: ". . . the property which every man has in the service of his domestics." The distinction is not unimportant; and it was steadily observed. A master had no right of action for the injury of his servant, unless he thereby lost his services - ". . . for be the battery greater or less, if the master does not lose the service of his servant, he shall not have an action" (Robert Marys's Case (1612) 9 Co Rep 113a (77 ER 899) ). When as late as 1847 in Eager v. Grimwood [1847] EngR 562; (1847) 1 Ex 61 (154 ER 26) , counsel suggested that the plaintiff's right arose because he had "a kind of property" in a servant (there his daughter), Alderson B. corrected him saying "No, the plaintiff has only a right to her service" (1847) 1 Ex, at p 63 (154 ER, at p 27) . The servile obligations of villein status, the right of a lord to enforce the customary services of his villeins, and his remedies against persons interfering with them or in his relations with them all lend colour to statements that mediaeval serfdom was slavery, that villeins were mere chattels. And for this Rolle's Abridgment has been quoted. Rolle said that a master can justify a battery of another in defence of his servant "car le servant est en manner son chattel" (Abridgment, 546 D2). He got this from Y.B. 19 Hen. vi, 31B, where the statement seems to mean that a master's acting in defence of his servant is justifiable, as acting in defence of his goods would be. This, however, seems to me to fall somewhat short of meaning that in law serfs and servants were chattels in the sense that slaves were. For defining the ideas upon which the action per quod servitium amisit was built, exactness is necessary; and the question can hardly be concluded by language likening a servant to a chattel. There were slaves in England at the time of Domesday, and for some time, perhaps a century or more, thereafter. But "between the modern employer and the slave-owner stand some centuries of villeinage". (Pollock & Maitland, History of English Law (1895), vol. ii, p. 528). And of the villeins Maitland wrote: "They are unfree, but we must not call them slaves; they are not rightless; the law does not treat them as things it treats them as persons; still they are unfree . . . ." (The Constitutional History of England, (1908), p. 33). Bracton's servus was also called a villanus or nativus; the female villein was a nieve (nativa). These were all more or less equivalent terms, indicative of personal subjection (Vinogradoff, Villeinage in England (1892), pp. 140-144). The right which in Bracton's time the common law was already protecting was a right to the servitium of villeins, but not only to the services of such bondmen. To say that actions for trespass causing loss of servitium began in status and survived a transition to contract, may suggest that we can divide the history of master and servant into an age of status and an age of contract. But there was no clear dividing line in time. Some statements seem to compress a long and complicated course of social and legal history beyond what it will really bear without distortion. Centuries cannot be packed into a sentence. From early times hired servants working for wages worked in England with villeins who were rendering customary services in return for their lands. In the first half of the fourteenth century wage labour was being used on some manor farms: see Lipson, Economic History of England vol. i, 92 et passim. In manorial records the permanent hired staff were often called the famuli, in distinction from casual workers paid by the piece (ad tascham). And famuli were not always indwellers, as famuli infra portam et extra are mentioned. The famuli were, however, not necessarily the same as the familia or household staff: see Hilton, Economic Development of some Leicestershire Estates in the Fourteenth and Fifteenth Centuries, pp. 70, 142 et passum. Bracton himself, in discussing the rights of a master if his servant be injured, speaks of a serviens vel servus. Part of Maitland's comment on Bracton's text at this point may be quoted. Contrasting Bracton's statements with Azo's text he said: "Bracton blurs these outlines; but he does this intentionally, and all the changes that he makes tend toward the English law of later days. In the first place the Roman iniuria loses in his hands the sense of outrage and insult". Per quod servitium amisit was to become a complaint of pecuniary damage. "In the second place", Maitland goes on, "the sharp notion of the patria potestas gives way to the vaguer familia in its mediaeval sense. The case of my filius familias is, for the purpose that is in hand, the same as that of the servant, free or unfree, who forms part of my familia, my household, my retinue. The difference between bond and free is ignored." (Bracton and Azo, Selden Society, vol. 8, 217-218). This exactly states the position. Already in Bracton's time the law is taking the shape in which loss of services, not merely harm to a member of the family, will be essential. For Bracton, insult and shame might, in some cases, suffice without pecuniary loss - but the doctrine was soon to become settled that loss of service is the gist of the action. So that centuries later a daughter must have at least made tea for her father if he were to have an action for seduction. And as to who were servants? They must be members of their master's household, but with household understood in that extended sense which would later comprehend for example the great retinues of Tudor magnates - the sense in which we speak of Household Troops, menials in the mediaeval sense of the word. All famuli were not originally of the familia; but from the idea of the household grew the doctrine of the master's right to the servitium of all those who served him. That Bracton made his statements of the hired servant as well as of the villein is the striking thing. When Cowel wrote - in Latin, and professedly seeking to digest English law in the model of the Civil Law, as became a Regius Professor in 1605 - he naturally founded the rights of masters in potestas. They could he said be injured not only in themselves, but also in the persons of those under their power, per uxores, per liberos, per servientes et per servos. The 1651 translation, in a chapter headed "Trespasses and Injuries" makes this "wives, children, servants and villeins". Ascribing the foundation of the remedy to potestas was merely conventional Romanism. What is significant is that the right of action in trespass is again recognized in respect of both bondmen and hired servants. It had been so from the beginning. The action per quod servitium amisit is not an application to servants by contract of an action developed in respect of villein status. It was developed in relation to the position of a servant whether servus, serviens or famulus. Indeed, it has been said that: "It may be doubted whether personal servants were generally unfree men at the time the common law of trespass was in course of active formation." (Pollock and Wright, Possession in the Common Law (1888), p. 59). The general descriptions in the Statutes of Labourers (23 Ed. III and 25 Ed. III Stat. 1), in Latin or French, included workmen (operarii), servants (servantz) and artificers. For examples: Omnes et singuli operarii servitores et artifices tam viri quam femine . . . (23 Ed. III c. 8), and si messor falcator aut alius operarius vel serviens cujuscunque status vel conditionis . . . (23 Ed. III c. 2), and ministres overours laborers et autres servantz queconques . . . (25 Ed. III Stat. 1 c. 5). In the rapidly changing economy which followed the Black Death the action per quod servitium amisit continued to be available, simply because it had earlier been available in respect of the services of hired men as well as of villeins. To use new terminology, it applied to servants by retainer as well as to the servi of whom Bracton had written. It applied to servants at will as well as to servants hired for a term. A characteristic mentioned by the Chief Justice (1952) 85 CLR, at pp 243-253 , and by the Privy Council in the Policeman's Case (1955) AC 457; (1955) 92 CLR 113 , was thus that the action depended upon the simple fact of service, not on a contract of service (1955) AC, at p 483; (1955) 92 CLR, at p 123 (see footnote, apparently written by Hale, in F.N.B. 91G). (at p453)
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] EngR 15; (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 [1792] EngR 145; (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] EngR 69; (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 [1658] EngR 456; (1648) Style 94 (82 ER 557) and Bleeke v. Grove [1714] EngR 5; (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)." [1658] EngR 456; (1648) Style 94 (82 ER 557) . Siderfin's comments in Bleeke v. Grove [1714] EngR 5; (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] EngR 355; (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] EngR 707; (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] EngR 547; (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] HCA 66; (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] HCA 66; (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] HCA 33; (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)
ORDER
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.
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