Deatons Pty Ltd v Flew

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.