A-G (NSW) v Perpetual Trustee Co Ltd [1952] HCA 2

High Court of Australia Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ. A-G (NSW) v Perpetual Trustee Co Ltd [1952] HCA 2

ORDER Appeal dismissed.

Cur. adv. vult.

The following written judgments were delivered:—

March 5, 1952 Dixon J.

By the order under appeal the Supreme Court of New South Wales allowed a demurrer to an information in personam by the Attorney-General and entered judgment for the defendants.

The cause of action set up by the information is for the loss of the services of a member of the police force of New South Wales owing to physical injuries sustained by him in consequence of the negligent management of a motor vehicle for which negligence the defendants were responsible. The pleading contains an allegation that the member of the police force was discharged by reason of disablement caused by such injuries and it alleges facts directed to show that up to his discharge it was incumbent upon the Crown to pay him the salary and allowances appropriate to his office and upon his discharge to pay him a pension which otherwise would not have commenced at so early a date. The claim of the Attorney-General on behalf of the Crown is to recover the salary and allowances so paid and to be reimbursed in respect both of the moneys already paid and of the moneys which will hereafter be paid to him, and the information concludes with a claim to a money sum. The basis of the information is a cause of action per quod servitium amisit and in such a cause of action, whether framed in trespass or in case, the damages have always been unliquidated. The payments made, and to be made, to the injured man may or may not afford a proper measure of damages. According to Bradford Corporation v. Webster [3] ; Attorney-General v. Valle-Jones [4] ; Attorney-General v. Dublin United Tramways Co. (1896) Ltd. [1] and R. v. Richardson [2] the salary and allowances do form a measure of damages and the actual and prospective payments of pension are relevant to the assessment of damages. But according to the dictum at the end of Lord Sumner's opinion in Admiralty Commissioners v. S.S. Amerika [3] none of these payments would enter into the measure of damages and according to a dictum of Lord Parker in the same case [4] the payments on account of pension would not do so. If Lord Sumner's opinion is right it may be a question whether the information sufficiently alleges damage legally resulting from the loss of the injured policeman's services to sustain the pleading, if otherwise it discloses a cause of action. But it was not upon this point that the demurrer was argued. Moreover for the purpose of answering a general demurrer enough may perhaps be extracted from the information to supply the necessary allegation that the loss of his services involved damage, even if it were held that none of the specific expenditure alleged ought in law to be considered part of the damage. I shall therefore confine my decision to the point that was relied upon in support of the demurrer namely that the loss of the services of a member of the police force owing to his disablement caused by a wrongful act does not give the Crown a cause of action against the tort feasor.