NEW SOUTH WALES. Master and Servant-Assault by servant-Barmaid-Scope of employment-Liability
Upon the hearing of an action of assault brought by F. against D., a com- pany, and B., a barmaid employed at a hotel owned by D., F. said he went into the hotel and addressed to B. a polite question as to the whereabouts of the licensee whereupon she first threw into his face beer out of a glass and then threw the glass at him with the result that he lost the sight of one eye. B.'s evidence was that F. was in an intoxicated condition; struck her and used filthy expressions to her, and she, in the heat of anger and resent- ment, threw the beer into his face and the glass accidentally slipped out of her hand. The trial judge directed the jury that if they believed F.'s evidence there should be a verdict against both D. and B., but if they believed the defendants' evidence to the effect that B. was merely retaliating for a personal affront there should be a verdict against B. but for D. The jury found for F. against D. and B. The Full Court directed a general new trial. On appeal by D.,
Held that B.'s act was an independent personal act which was not connected with or incidental in any manner to the work which she was either expressly or impliedly authorized to perform, therefore although the verdict against B. should stand, D. was as a matter of law entitled to a verdict.
Decision of the Supreme Court of New South Wales (Full Court): Flew V. Deatons Pty. Ltd., (1949) 49 S.R. (N.S.W.) 219 66 W.N. (N.S.W.) 98,
In an action brought by him in the Supreme Court of New South Wales, Mark Waterford Flew claimed from Deatons Pty. Ltd. and Opal Ruby Pearl Barlow the sum of £3,000 as damages.
It was alleged in the declaration that Deatons Pty. Ltd. carried on the trade or business of hotel proprietor and employed Mrs. Barlow as a barmaid in that business and that the defendant com- pany by itself, its servant and agent Mrs. Barlow and the defendant Mrs. Barlow assaulted and beat the plaintiff whereby he was wounded and permanently injured by the loss of the sight of one eye and he was otherwise damnified.
The defendants pleaded not guilty and denied the allegations that the defendant company carried on the trade or business of hotel proprietor and employed the defendant Mrs. Barlow as a barmaid in that business.
Evidence was given for the plaintiff to the following effect. The plaintiff said that shortly after two o'clock on Saturday afternoon, 9th November 1946, he went into the saloon bar at the defendant company's hotel, the Hotel Manly, and remained there until about 5.20 o'clock p.m. and whilst there consumed about nine…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Deatons Pty Ltd v Flew
Sign in free to access the full text
Details
AGLC
Deatons Pty Limited v Flew [1949] HCA 60
Case
[1949] HCA 60
Decision Date
CaseChat Overview and Summary
In *Deatons Pty Ltd v Flew*, the High Court of Australia considered an appeal from the Full Court of the Supreme Court of New South Wales concerning the vicarious liability of an employer for an assault committed by its employee. The plaintiff, Flew, sued Deatons Pty Ltd, a hotel owner, and its barmaid, Barlow, for damages arising from an assault. Flew alleged that Barlow threw beer and a glass at him, causing him to lose the sight of one eye. Barlow contended that Flew was intoxicated, had struck her and used abusive language, and that her actions were a heat-of-the-moment retaliation. The jury found in favour of Flew against both Deatons Pty Ltd and Barlow. The Full Court ordered a new trial, finding that it was open to the jury to infer either that Barlow acted in self-defence or that her actions were an independent act of personal retribution, in which case the employer would not be liable.
The central legal issue before the High Court was whether the barmaid's assault on the plaintiff occurred within the scope of her employment, thereby rendering her employer vicariously liable. This required the court to determine if the act of throwing beer and a glass at a customer could be considered an authorised act, an act incidental to her employment, or a mode of performing her duties, even if done improperly. The court also considered whether the act could be construed as self-defence or an attempt to maintain order, which might bring it within the scope of employment.
The High Court held that the barmaid's act was an independent personal act and not connected with or incidental to her employment. The court reasoned that while an employer is liable for acts done by an employee within the scope of their authority, the barmaid's actions, whether viewed as unprovoked aggression or retaliation for personal insult, did not fall within the duties she was employed to perform. The court distinguished this case from situations where an employee's wrongful act is a mode of performing an authorised duty or is done in furtherance of the employer's interests. Therefore, the court concluded that there was no evidence to support a finding of liability against the employer, Deatons Pty Ltd.
Consequently, the High Court allowed the appeal, setting aside the order for a new trial and directing that judgment be entered for Deatons Pty Ltd. The court also restored the verdict and judgment against the individual defendant, Barlow, who had not appealed.