NOTES OF CASES
| Date | 01 September 1955 |
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00318.x |
| Published date | 01 September 1955 |
NOTES
OF
CASES
THE
CROWN
AND
‘‘
PER
QUOD
SERVITIUM AMISIT
”
Are Policemen Servants?
(No.
2)
A
FIRST
note
on
the above subject in
16
M.L.R.
97
dealt with the
wide range of opinions expressed by the High Court of Australia
in
Att.-Gen. for
N.S.W.
v.
Perpetual Trustee Co. Ltd.
[1952]
A.L.R.
125;
85
C.L.R.
237.
The same case has now been decided
on
appeal by the Judicial Committee of the Privy Council:
[1955]
2
W.L.R.
707; [1955] 1
All E.R.
846.
In
an opinion delivered
by Viscount Simonds, the Board affirmed the majority decision of
the High Court holding that the Crown could not recover damages
against a defendant whose negligent injuring of
a
police constable
led to the Crown losing the latter’s services and being prematurely
committed to retiring him
on
pension.
As indicated in the first note, the several High Court opinions
gave many reasons for supporting a decision either way. The
single Board opinion has t.he convenience of giving more restricted
reasons, but these have even wider possible implications than had
the reasoning which prevailed below.
The
“
Goodhartian
”
ratio of the Board’s decision is clear and
unobjectionable, and
so
is a first extension to loss of services of a
member of the armed forces;
on
the latter point, the majority
opinion of the High Court in
Commonwealth
v.
Quince
(1944)
68
C.L.R.
227
is approved. The conflicting decisions in
Bradford
Corporation
v.
Webster
[1920] 2
K.B.
135
and
Att.-Gen.
v.
Valle-
Jones
[1935] 2
K.B.
209
are disapproved and will presumably be
treated by the English courts as overruled; the House of Lords
has by
no
means always faithfully followed Judicial Committee
decisions, as can be seen by comparing
Commonwealth Trust
v.
Akotey
[1926]
A.C.
72
(J.C.) with
Jones
v.
Waring and
Gillow
[1926]
A.C.
670
(H.L.), and
Robinson
v.
South Australia
[1929]
A.C.
469
(J.C.) with the
Thetis Case
[1942]
A.C.
624
(H.L.), but
in the present instance the decision is too specific and based
on
generally applicable principles of the unenacted law to be readily
distinguished.
The Judicial Committee has come down
on
the side
of
the
Australian
“
modernists
”
(Fullagar and Kitto JJ.), who regarded
the action
per quod servitium amisit
as a barbarous survival, not
to be extended any further than imperative authority, narrowly
construed, requires. But in seeking reasons for excluding police
and military service from the scope of the action, the Board has
produced an explanatory hypothesis which while related to theories
488
SEPT.
1955
NOTES
OF
CASES
489
canvassed below produces a different emphasis. The Board puts
its stress
on
what
it
considers a
‘‘
fundamental
”
distinction
between “public office”
on
the one hand and “private domestic
relations
”
on
the other. The
‘‘
public officer,” though often called
a servant, is said to have an
‘‘
original
”
authority, meaning one
not derived from the command of a master, whereas the master’s
authority is the essential feature of private service. This notion
was not absent from the reasoning
in
the High Court, but there
the principal stress was
on
the conception of fealty which distin-
guishes military and police service not only from private service,
but also from other forms of public service.
It
is suggested with respect that the Board’s emphasis is
unfortunate.
It
fails to supply any satisfactory explanation of the
military case, where command rather than independent authority
is most prominent. Even the police carry out a great many duties
which are properly traceable to a
“
command
”
situation, notionally
culminating, with the highly centralised police systems of the
Australian states,
in
a
Minister of the Crown. Moreover, although
the Board points out that the question of vicarious liability of the
Crown does not necessarily depend
on
the same considerations as
those applicable to the instant problem, their Lordships did rely
to a considerable extent
on
analogies drawn from such unfortunate
decisions as
Enever
v.
R.
(1906) 3
C.L.R.
969,
whose ludicrous
consequences can be seen in
Baume
v.
Commonwealth
(1906)
4
C.L.R.
97
and
Field
v.
Nott
(1939) 62
C.L.R.
660;
thus we are
threatened with an extension of the pestiferous doctrine which
insulates the public treasury from responsibility for many kinds
of official wrong, because of an antiquarian concentration
on
what
“
The Crown
”
can command, when a more contemporary approach
would be to inquire merely whether the officer in question is
carrying
on
the business of government. Since the actual practice
of governments usually accepts financial responsibility for the
wrongdoings of soldiers and police, and discretionary torts of other
servants,
it
is difficult to see why the courts should
go
out of their
way to encourage doctrines which remove such claims from the
sphere of enforceable right, relegate them to treasury discretion,
and create in practice merely the opportunity
for
the private citizen
to be mulcted in costs. However, this aspect of the present
decision is an implication from its explanatory hypothesis, and
it
is to be hoped that the courts will show the frequent distrust of
such hypotheses which justifies the peculiar boast that the law
of
England is not logical.
G.
SAWEL
VOL.
18
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