Deatons Pty Ltd v Flew [1949] HCA 60

Deatons Pty Ltd v Flew [1949] HCA 60

The barmaid's assault was not expressly authorised, was not so connected with any authorised act as to be a mode of doing it, and was not incidental to her duties as a barmaid. On the plaintiff's evidence it was an unexplained and unprovoked assault; on the defendants' evidence it was retaliation for a personal affront. In either case it was an independent personal act of passion or retribution, not an act done in furtherance of the employer's interests, maintaining order, answering an inquiry, protecting property, or in the course of employment. There was therefore no evidence on which the jury could reasonably find Deatons Pty Ltd vicariously liable, while Mrs. Barlow remained liable...

Jurisdiction
Australia
Procedural Posture
Action for Damages for Assault; Trespass to the Person / Appeal to the High Court of Australia From an Order of the Full Court of the Supreme Court of New South Wales Granting a New Trial, With Cross Appeal
Outcome
Appeal allowed with costs; order of the Full Court set aside; judgment entered for Deatons Pty Ltd; cross-appeal dismissed as against Deatons Pty Ltd and allowed against Mrs. Barlow.
Legal Topics
['vicarious Liability' 'assault' 'course of Employment' 'scope of Authority of Servant' 'trespass to the Person']
['tort Law' 'employment Law'] ['vicarious Liability' 'assault' 'course of Employment' 'scope of Authority of Servant' 'trespass to the Person']

Case Brief

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Procedural Posture

Action for Damages for Assault; Trespass to the Person / Appeal to the High Court of Australia From an Order of the Full Court of the Supreme Court of New South Wales Granting a New Trial, With Cross Appeal

Legal Issues

  1. 1 ['Whether Deatons Pty Ltd was vicariously liable for an assault committed by its employed barmaid on the plaintiff.' 'Whether there was evidence on which a jury could reasonably find that the barmaid acted in the course of her employment.' "Whether the barmaid's act could be characterised as an improper mode of performing an authorised duty, maintaining order, answering an inquiry, protecting property, or self-defence."]

Ratio Decidendi

The barmaid's assault was not expressly authorised, was not so connected with any authorised act as to be a mode of doing it, and was not incidental to her duties as a barmaid. On the plaintiff's evidence it was an unexplained and unprovoked assault; on the defendants' evidence it was retaliation for a personal affront. In either case it was an independent personal act of passion or retribution, not an act done in furtherance of the employer's interests, maintaining order, answering an inquiry, protecting property, or in the course of employment. There was therefore no evidence on which the jury could reasonably find Deatons Pty Ltd vicariously liable, while Mrs. Barlow remained liable...

Court Disposition

Appeal allowed with costs; order of the Full Court set aside; judgment entered for Deatons Pty Ltd; cross-appeal dismissed as against Deatons Pty Ltd and allowed against Mrs. Barlow.

Orders

  • ['Appeal allowed with costs.' 'Order of Full Court set aside.' 'Enter verdict and judgment for defendant company with costs of action.' "Plaintiff to pay defendant's costs of appeal in Supreme Court." 'Cross-appeal dismissed as against defendant company and allowed against defendant Barlow.' 'Verdict and judgment...