Commissioners of Inland Revenue v Hambrook
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BIRKETT,LORD JUSTICE PARKER |
| Judgment Date | 30 July 1956 |
| Judgment citation (vLex) | [1956] EWCA Civ J0730-4 |
| Date | 30 July 1956 |
| Court | Court of Appeal |
[1956] EWCA Civ J0730-4
Lord Justice Dening
Lord Justice Birkett and
Lord Justice Parker
In The Supreme Court of Judicature
Court of Appeal
The Solicitor-General (Sir Harry Hylton-Foster, Q.C., M.P.), Sir Prank Soskice, Q.C., Sir. Reginald Hills and Mr. Rodger Winn (instructed by Solicitor of Inland Revenue) appeared on behalf of the Appellants (plaintiffs).
Mr. N.R. Fox-Andrews, Q.C., and Mr. Hunfrey Edmunds (instructed by Messrs White & Company) appeared on behalf of the Respondent (Defendant).
LORD JUSTICE DENNING: The Commissioners of Inland Revenue, acting on behalf of the Crown, bring this action for the loss of service of Mr. Bryning. He was a tax officer and on the 26th July, 1952, when he was off duty he was riding a Motorcycle and came into collision with a motorcar driven by the Defendant Ham brook.
He was one-third to "blame and Hambrook two-thirds to blame. He was injured and off work for nearly10 months. The Grown paid him full pay for six months and half-pay for four months, and now claim that sum (less National insurance benefit) as damages in an action per quod servitium amisit.
An action by a master for loss of services is, as Lord Sumner said, a survival from the time when service was a statue. It is an anomaly, because it does not fit in with the principles of law as now understood. It treats a servant as, a chattel belonging to his master. If a ship or a car is damaged in a collision by the negligence of someone else, the owner of it can recover for the loss of use or it whilst it is being repaired. The action per quod servitium amisit enables a master to do the sine if his servant in injured, is one else, except a wife, is treated in this way. if a director of a company or a partner in is injured in an accident, he can for damages. The company or firm cannot sue for loss of his services. If a master himself is injured, his servants may be throw out of employment, but they cannot sue for their loss, If a solicitor is injured, clients may be much prejudiced by his absence from hit: work, but they have no claim for damages on that account. The general principle of law is, as Lord Parker stated in the " Amerika" case (1917 Appeal Gases, at page 5), that "the loss of A. arising out of an injury whereby is unable to perform his contract is not actionable".
Another anomaly is disclosed by the facts of the present case. If the Commissioners can recover damages for loss of Mr. Bryning's services they would be entitled to the full amount without any reduction at all, despite the fact that he was one-third to blame. This is, indeed, the logical result of treating Mr. Bryning as a chattel. If the owner of a motorcar sends it out with a driver and, whilst he is driving in the course of his employment, the car is damaged in a collision by the faults of both drivers, the owner must take responsibility for his own driver's negligence. He only gets reduced damages. But ifthe driver takes the car out "on a frolic of his own", outside the course of his employment, the owner recovers fall damages for the car because he is not then responsible for the driver's negligence, so here, when Mr. Bryning is off duty, the Commissioners, if their claim is good, can treat him as their Chattel and claim full damages for the lose of a is service's although it was partly his own fault.
I need hardly say that, in face of these anomalies, this sort of action should not be extended. This was emphasised by the Privy Council in the recent case of ( Attorney-General for New South Wales v. The Perpetual Trustee Company 1955 Appeal Cases, page 457). The question for us is whether the present claim is an extension or not. To answer this, it is necessary to inquire the bounds of the action. This can only be done by tracing its development throughout the centuries. In the middle Ages, servants were regarded is property belonging to the master. If another man took them away, he could be sued in just as if he took cattle. This way of looking at them is best shown by the old writs collected from the Year Books by Mr. Justice who lived early in the 16th Century. One writ describes how a lord of the manor put his villein in the stocks because he had disobeyed orders. Another man broke up the stocks and let the villein out. It was held that the lord of the manor had an action of trespass against the one who set the villein free. Another writ describes how the abbot of a monastery put a in a cell so that he could be chastised because of the order. A friend of the friar got into the monastery and let him out. It was held that the abbot had an action of trespass against the one who set the friar free. So also it was held, quite generally that "a can shall have an action of trespass for taking his apprentice or taking his servant" (see Fitzherbert's Natura Brevium, page 91)
In such a state of society it was natural to give a master a cause of action against anyone who beat his servants.
his service, is the cause of his action, for "be the battery greater or less, if the master doth not lose the service of his servant, he shall not have an action". To that statement of the law, there needs only to be added the commentary by sir Matthew 50 years later: "Trespass for beating his servant, per quod lies although he was not retained, but served only will", citing a case of 1410. (See Natura ).
action for inducing a servant to leave, said: "The reason and foundation, upon which all this doctrine is built, seems 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". 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.
That this was the general opinion of the time appears from the case of ( Taylor v. Neri 1795, 1 Espinasse, nisi prius, page 386), It was sought there to extend the action per quod servitium amisit to the case of a singer hired to sing. Lord Chief Justice Eyre, Chief Justice of the Common Pleas, a most respected and experienced Judge, refused to admit it. He said that he did not think the Court had ever gone further than the case of smenial servant. The precedents of that time show that the declaration in seduction cases described the daughter as a "menial servant" (see Bennett v. Allcott, 1787, 2 Term Reports, page 166).
We may take it, therefore, that at the close of the 18th Century the action was confined to the members of the household who rendered services to the head of it and who had to be kept by him in sickness and in health sons, daughters, apprentices, and so forth for in them alone was there a resemblance of property. It was quite reasonable that the master, who had to keep them whilst sick, should have a cause of action for loss of their services.
In the 19th Century the action survived mostly to avenge the seduction of a daughter a special category which stands by itself and on which I do not pause. There are few other cases. In l840, a watch maker recovered damages for loss of services of his apprentice ( Hodsoll v. Stallabrass, 11 Adolphus and. Ellis, page 301). The apprentice lived in as one of the family, as many did in those days, perhaps he slept under the counter.
Then in 1841 came the case of ( Martinez v. Gerber 3 Manning and Granger, page 68) which looks at first sight as if it was an extension. A master was allowed an action for loss of services 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 vas the case, else it would be an illegitimate extension of the law as it was understood by Chief Justice Eyre.
There is no other case worthy of notice in the 19th Century but I would remark that towards the close of the Century Sir Pollock, who was well versed in the history of the law and in particular of this cause of action, makes it clear that in his view it is confined to members of the household. In the First Edition of his book on Torts, published in 1687, he said (at page 194.) "It seems natural enough that an action should lie at the suit of the head of a household for enticing away a person who is under his lawful authority, be it wife, child the or servant: there may be a difficulty in fixing / boundary whore the sphere of domestic relation ands; and that of pure contract begins, but that is a difficult of degree. That the same rule should extend to any wrong done to a wife, child or servant, and follow as a proximate consequence by loss of their society or service is equally to be expected". It is to be noted that in that passage and in its setting in the book, Pollock confines the action to the head of the household in respect of injuries in family relations. The passage has remained unchanged in every edition from that time to this.
The 20th Century opens with the ( "Amerika" 1917 Appeal Cases), where naval men were drowned when a submarine was sunk by the negligence of a wrongdoer. The Commissioners of Admiralty sued to recover the pensions payable to their families, but failed because of the principle actio personalis moritur cum persona: but Lord Parker and Lord Sumner emphasised the anomalousnature of the action per quod servitium amisit. Then in 1935 came the case of ( Attorney-General v. valle- Jones 1935, 2 King's pench, page 209), where two were injured as a result of a collision with a whereby the crown lost their services; and in 1947, ( Mankin v. scala 1947 king's Bench, page 257), where a theatrical performer was injured and...
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