Deatons Pty Ltd v Flew [1949]: A Case Summary

Case name & citation: Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370

Court: High Court of Australia
The bench of judges: Latham CJ, Dixon, McTiernan, Williams and Webb JJ
Judgment date: 12 December 1949
Area of law: Assault by servant; vicarious liability; scope of employment

What is the case about?

In the legal case of Deatons Pty Ltd v Flew, the issue revolved around whether an employer, Deatons Pty Ltd, was liable for the actions of their employee, Opal Ruby Pearl Barlow, a barmaid who assaulted Mark Waterford Flew, resulting in him losing sight in one eye.

Facts (Deatons Pty Ltd v Flew)

Mark Waterford Flew entered Hotel Manly where Opal Ruby Pearl Barlow worked as a barmaid. Flew asked Barlow about the whereabouts of the licensee. According to Flew, Barlow responded by throwing beer in his face and then throwing a glass at him, causing his injury.

Barlow’s version was that Flew, who was intoxicated, knocked over glasses, used abusive language, and struck her, prompting her to throw the beer at him, accidentally dropping the glass which also hit him.

Flew sued both Deatons Pty Ltd (the employer) and Barlow for damages due to the assault.

The jury found for Flew against both Deatons Pty Ltd and Barlow. However, the Full Court ordered a new trial. On this, Deatons Pty Ltd appealed to the High Court.

Issue

The issue was whether Barlow’s actions were within the scope of her employment and, if so, whether her employer should be held liable.

High Court’s decision

Chief Justice Latham delivered the judgment, stating that for an employer to be liable for an employee’s actions, those actions must be within the scope of employment or incidental to it. Latham concluded that Barlow’s assault on Flew was an independent, personal act not connected to her duties as a barmaid. Therefore, Deatons Pty Ltd. could not be held liable for her actions as a matter of law.

The court allowed the appeal made by Deatons, set aside the decision of the Full Court of the Supreme Court of New South Wales, and entered a verdict for Deatons Pty Ltd, affirming liability only against Barlow individually.

Legal principle

The case underscores the principle of vicarious liability, where an employer can be held responsible for the actions of an employee if those actions were within the scope of employment. Here, the court determined that Barlow’s assault did not meet this criterion.

Quotes from the case (Deatons Pty Ltd v Flew)

“The truth is that it was an act of passion and resentment done neither in furtherance of the master’s interests nor under his express or implied authority nor as an incident to or in consequence of anything the barmaid was employed to do. It was a spontaneous act of retributive justice. The occasion for administering it and the form it took may have arisen from the fact that she was a barmaid but retribution was not within the course of her employment as a barmaid.”

(Dixon J at 382)

“But throwing beer in the face of a customer simply was not a means of keeping order, nor in my opinion can it be said that such an action is incidental to the work which the barmaid was employed to do. Upon the plaintiff’s evidence (Flew’s version), the throwing of the beer was a gratuitous, unprovoked act which had nothing at all to do with the performance of the duties of the barmaid. Upon the evidence given for the defendant (Barlow’s version), the act was an act of personal resentment and was not in any way performed as on behalf of the employer. It was not done even in supposed furtherance of the interests of the employer.”

(Latham CJ at 379)

References:

https://jade.io/article/64642

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Kuru v NSW [2008]: A Case Summary

Kuru v NSW [2008] is a tort law case on issues of trespass and false imprisonment.

Case name & citation: Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1

The concerned Court: High Court of Australia
Decided on: 12 June 2008
The bench of judges: Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ
Area of law: Trespass to land; False imprisonment; Domestic violence; Trespass to person

Quick Outline

1. On getting a report, police entered a house to check if there was violence.
2. Upon arrival, there were no ongoing arguments.
3. The house owner asked the police to leave, but the police refused. A physical struggle ensued.
4. Held: The police no longer had a legal basis to remain on the property. It was trespassing from the time it was asked to leave.

Facts of Kuru v State of NSW

The incident occurred on 16 June 2001 when six police officers went to Mr. Kuru’s house after receiving a report that a man and a woman were fighting. By the time police arrived, the argument between Kuru and his fiancée had ended and she had left with Kuru’s sister.

When the police entered, two of Kuru’s friends were in the living room and he was in the shower. When he came out, he allowed the police to look around. He said that his fiancée had already left and gave his sister’s telephone number.

Then he asked the police to leave. But the police refused to leave after repeated demands.

Mr. Kuru jumped on the kitchen bench to gain their attention and later moved towards the police with his arms outstretched, making physical contact with an officer.

A physical struggle ensued and Kuru was punched, sprayed with capsicum spray, and handcuffed. He was then taken into custody.

Legal proceedings

Mr. Kuru brought action against the State of NSW in the NSW District Court and claimed damages for trespass to his person and property and false imprisonment. He was awarded damages of $418,265.

The State of NSW appealed to the NSW Court of Appeal. The appeal was allowed. The police were not considered trespassers when Mr. Kuru first made contact with one officer. The police had a statutory right to stay there as they were investigating whether domestic violence was committed.

Kuru appealed to the High Court of Australia.

Judgment of the High Court in Kuru v State of NSW

The High Court allowed the appeal with a 4:1 majority. The main question was whether the police were trespassing at the time of the physical encounter with Mr. Kuru.

The police did not have statutory or common law powers to stay at Kuru’s house. As per Section 357F of the Crimes Act, police were entitled to enter or remain even if the occupier of the house objected provided that the police were invited by a domestic violence victim.

However, in this case, the police were not invited by a domestic violence victim.

In addition, Section 357H provided that police who entered a house by invitation or with a warrant could remain there only as long as needed to investigate whether an offense had been committed, to render aid to an injured person, to make an arrest, to prevent further offenses, etc.

The police, in this case, had already inspected the house and did not need to stay to speak to the fiancée.

After Kuru had asked them to leave, the police were not entitled by Sections 357F or 357H to remain at the house.

Also, the common law recognized that trespass on land could be justified in emergencies, but in this case, there was no danger to life or property, and no emergency situation.

Mr. Kuru’s refusal or withdrawal of permission for the police to enter or remain on the property could not be overridden in this case.

Conclusion

The High Court held that the police officers refused to leave Kuru’s house after he asked them to do so and engaged in a physical struggle with him. They had committed a trespass to his person as well as his property.

References:

High Court of Australia. (n.d.). https://www.hcourt.gov.au/assets/publications/judgment-summaries/2008/hca26-2008-06-12.pdf

Nedim, U. (2020, May 6). Can police enter and leave my property as they please?. Sydney Criminal Lawyers. https://www.sydneycriminallawyers.com.au/blog/can-police-enter-and-leave-my-property-as-they-please/

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A Case Summary of Brady v Schatzel [1911]

Case name & citation: Brady v Schatzel [1911] St R Qd 206

The concerned Court: Queensland Supreme Court
Decided on: 08 Aug 1911
The learned judge: Chubb J
Area of law: Assault

Case Overview

Brady v Schatzel [1911] is a tort law case on assault. It dealt with the question of whether an act can be constituted assault if it doesn’t frighten the victim. Also, does it matter that the accused person is actually incapable of carrying out the threat (though not obvious)?

What happened in Brady v Schatzel?

The plaintiff entered the defendant’s property to question her son over something. The defendant pointed an unloaded gun at the plaintiff and threatened to shoot him. In Court, the plaintiff said that he was not scared or frightened by the actions of the defendant. Nevertheless, the Court decided that the defendant was still liable for assault because her actions created a reasonable apprehension of violence or the immediate application of force. It did not matter whether the plaintiff was personally scared or not. The purpose of the law is to protect people from such instances of violence and threats of force.

Furthermore, despite the gun not being loaded, the defendant was still liable. A person pointing an unloaded gun at someone can be convicted of assault if it makes the victim believe that the gun is loaded. Again, what is necessary to establish an assault is the intention to cause apprehension in the plaintiff that a battery is about to occur. No actual physical force or interference is necessary. Even if the person creating the apprehension is incapable of making physical contact with the victim, the victim may still reasonably apprehend imminent physical force.

Quote from Brady v Schatzel

The Supreme Court of Queensland stated as under:

“[I]t is not material that the person assaulted should be put in fear … If that were so, it would make an assault not dependent upon the intention of the assailant, but upon the question whether the party assaulted was a courageous or timid person.”

Reasoning behind the decision

To constitute assault, the defendant’s actions must be such that would create an apprehension of imminent violence in the mind of a reasonable man. In other words, the victim must reasonably apprehend the harm. The act must make a reasonable man in the shoes of the plaintiff believe that force is about to be applied to them.

Merely because the plaintiff is a brave person and was not frightened by the threat, it does not preclude the plaintiff from claiming damages for assault provided that the alleged act of assault would make a reasonable person to apprehend that imminent harmful or offensive contact would occur.

The test is an objective test, meaning that it is not based on the specific or particular plaintiff but rather on how a reasonable man would perceive the situation.

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A Quick Summary of Cowell v Rosehill Racecourse Co Ltd [1937]

Cowell v Rosehill Racecourse Co Ltd [1937] is a tort law case from Australia differentiating between contractual rights and property rights.

Case name & citation: Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17; (1937) 56 CLR 605; [1937] ALR 273

The concerned Court: High Court of Australia
Decided on: 22 April 1937
The bench of judges: (Latham C.J., Starke, Dixon and McTiernan JJ., Evatt J. dissenting)
Area of law: Trespass to land; Assault

What is the case about?

The case is about the revocability of licenses and whether someone buying a ticket for admission to a public entertainment event has a property interest or only a contractual right.

Facts of the case (Cowell v Rosehill Racecourse Co Ltd)

The plaintiff had paid for admission to the defendant’s racecourse but was later asked to leave on account of inappropriate behavior. Upon refusal by him to leave, he was ejected by the defendant’s servants without undue force (i.e., using no more force than was necessary).

The plaintiff filed a lawsuit seeking damages for assault. The defendant’s defense was that they had revoked the plaintiff’s license to be on the land, making him a trespasser and justifying his ejection.

Issue

Whether the plaintiff’s license to be on the racecourse a contractual right or a property one?

Could the defendant rely on the license’s revocation as a defense against the alleged assault?

Judgement of the Court in Cowell v Rosehill Racecourse

The High Court emphasized that the right to see a spectacle is not a proprietary right but a contractual one, and therefore, it cannot make the license irrevocable. It affirmed that a license is generally revocable, whether under seal or not, unless it is a license coupled with a grant of property.

Upholding the decision of the Supreme Court of New South Wales, the Court clarified that purchasing a ticket for admission to a public entertainment event grants the holder a contractual right, not a proprietary right. Further, a license remains revocable at law, even if there is an express contract not to revoke it. Revoking a license exposes the licensor to a breach of contract claim but does not affect the license’s revocability. Despite the breach of contract and the revocation of the license, the licensor is not prevented from using the termination of the license as a defense in a tort action (for example, a claim of assault in this context). The licensor can argue that the revocation of the license justified their actions, such as ejecting the licensee from a property or using reasonable force to expel trespassers.

The Court also concluded that equity would not decree specific performance or grant an unconditional injunction to prevent the revocation of a license in cases like these. It affirmed that the plaintiff had no equitable claim against the revocation of the license and was only entitled to remedies for a breach of contract.

Due to these points, the plaintiff could not be successful.

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A Case Summary of Zanker v Vartzokas (1988)

Case name & citation: Zanker v Vartzokas (1988) 34 A Crim R 11

Zanker v Vartzokas (1988) is a legal case that involved a potentially dangerous situation where a woman felt threatened by a man’s words and actions. The case raises questions about assault and particularly the relevance of the imminence of harm. How imminent does a threat of violence need to be in order to constitute assault?

Below are the case facts and details:

Facts of the case (Zanker v Vartzokas)

A woman accepted a ride from a young man. While they were in the moving car, the man made a sexual proposition to the woman and offered her money, which she rejected. She demanded him to stop the car so she could get out. But the situation escalated when the man accelerated the car and said to the woman, “I’m going to take you to my mate’s house. He will really fix you up.”

The woman was terrified of the threat and jumped out of the moving vehicle which was going at around 60 kilometres per hour. As a result, she sustained injuries. The male was eventually accused and convicted of assault.

Issue that arose

To be convicted of assault, it must be proved that the accused has caused the victim to fear or apprehend immediate and unlawful violence.

The Court agreed that the act of accelerating the car and issuing a threat of taking her to his mate’s house was considered a direct threat to her safety and well-being. Was this threat, however, immediate enough to constitute an assault?

The case highlights this point.

Judgment of the Court in Zanker v Vartzokas

The Court’s decision emphasized that the threat made by the man, although concerning violence that would occur in the future at the end of the woman’s supposed (unlawful) imprisonment, was still considered imminent or immediate in nature. This is so because it caused the plaintiff to reasonably believe that this violence would occur as soon as her unlawful imprisonment ended (i.e., as soon as the car reached the destination).

In other words, the threat conveyed a clear and immediate danger, even though the actual harm was set to happen in the future, right after the woman’s “imprisonment” ended. The threat placed a fear of relatively immediate violence in the woman’s mind and it continued to have effect as the vehicle travelled toward the destination, leaving the plaintiff at the defendant’s mercy. The circumstances were such that led the plaintiff to jump.

It was, therefore, effectively found imminent to be constituted assault.

Conclusion

The Court’s ruling clarified that it was not necessary for the injury or harm to be physically immediate; instead, it sufficed that the threat of harm had an immediate impact on the victim’s state of mind and induced fear or apprehension.

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Rixon v Star City Pty Ltd [2001]: A Case Summary

Rixon v Star City Pty Ltd [2001] is an Australian case on the issue of trespass to a person. It examined whether the touching of the plaintiff’s shoulder by a casino employee would amount to battery.

Given below are the case details.

Case name & citation:	Rixon v Star City Pty Ltd (2001) 53 NSWLR 98; [2001] NSWCA 265
Court and jurisdiction:	New South Wales, Court of Appeal (Australia)
Decided on:	28 September 2001
The bench of judges:	Priestley, Sheller and Heydon JJA
Area of law:	Assault, battery and false imprisonment

Facts of the case (Rixon v Star City)

The plaintiff, Mr. Brian Rixon, was an excluded gambler from a casino and was prohibited from entering the casino premises and participating in gambling activities. He had returned to the casino, despite being excluded, to play roulette. Employees at the casino noticed him and recognized him as an excluded person. One of the casino employees approached and placed his hand on the plaintiff’s shoulder and, when he turned around, asked him, “Are you Brian Rixon?” He was escorted to an “interview room,” where he was required to wait until the police came. Mr. Rixon sought damages for assault, battery and false imprisonment.

Legal claims

It was claimed that the casino employee’s actions of placing a hand on the plaintiff’s shoulder and asking if he was Brian Rixon amounted to assault. The same actions were also central to the question as to whether the plaintiff had been the victim of battery.

Mr. Rixon also sued for false imprisonment on the grounds that his detention in the “interview room” until the police arrived amounted to wrongful confinement against his will.

Judgment of the Court in Rixon v Star City Pty Ltd

The case was heard in the New South Wales Court of Appeal after the plaintiff failed at the first instance. The leading judgment was given by Sheller JA (with whom Priestley and Heydon JJ agreed).

Based on the facts of the case, the Court held that the actions of the casino employee did not intend to create an apprehension of imminent harmful conduct in Mr. Rixon’s mind. The question “Are you Brian Rixon?” was not seen as conveying an imminent threat of harm. Hence, the plaintiff had not been a victim of assault.

Furthermore, the Court found that the employee’s placing of his hand on the plaintiff’s shoulder did not constitute battery. It fell within the scope of everyday contact which is generally acceptable in daily life. The employee’s intent was to identify him and seek his attention, not to physically harm or make unlawful contact.

On the false imprisonment allegation, the Court determined that the Casino Control Act of 1992 and its regulations allowed for the detention of individuals like Mr. Rixon, who were unlawfully present in the casino and were excluded gamblers. The Act justified the plaintiff’s detention for a brief amount of time until the arrival of the police. Therefore, there was no false imprisonment as he was not meant to be in the casino in the first place.

Absence of hostility

It might also be important to note here that judges found that anger or a hostile attitude is not necessary to establish battery. For example, a medical procedure carried out without the patient’s consent could be considered a battery.

However, not every contact in day-to-day incidents will be taken to be a battery. The particular physical contact involved in this case was not of a nature that would constitute a battery. Because it fell within the realm of everyday physical contact. It did not involve harmful or offensive physical contact.

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A Case Summary of Rozsa v Samuels [1969]

Rozsa v Samuels [1969] is an Australian case on the issue of assault. It examined whether a conditional threat might be sufficient to amount to assault.

Case name & citation: Rozsa v Samuels [1969] SASR 205

The case is from: South Australian State Reports

Area of law: Assault; conditional threat

Given below are the case details:

Facts of the case (Rozsa v Samuels)

D (defendant) was a taxi driver who positioned his vehicle at the front of a queue. Another taxi driver, V (victim), argued with D about cutting in line. D responded, “I’m here, and I’m staying here.” V then warned to punch D in the head, to which D responded by pulling out a knife and stating, “I’ll cut you to pieces if you try it.” D attempted to exit his vehicle but was stopped by V slamming the taxi door shut to prevent him from getting out. D was charged with assault.

Issue that arose

The legal issue, in this case, was whether D’s actions would constitute assault or whether it could be considered self-defence.

Analysis and Decision of the Court

D’s response in this situation involved a conditional threat (i.e., a threat to inflict violence if V does not back off).

The Court determined that it was important to examine the nature of the threat and whether D had any right to impose that threat. One potential ground for justifying such threats is self-defence or protection of one’s rights. However, in this scenario, the Court found that D threatened to use excessive force, eliminating the possibility of relying on self-defence.

As a result, D was found to be guilty of assault because his response involved excessive force and went beyond what was necessary for self-defence. Here, D’s words and actions amounted to more than a mere threat of force to deter someone from pursuing an unlawful course of action. It was highlighted that there were alternative lawful means that D could have used to avoid the confrontation, such as locking his cab doors or moving away from the situation. Other reasonable options were available to him to address his concerns without resorting to threats or violence.

Summing up (Rozsa v Samuels)

Rozsa v Samuels [1969] can be summarized as a case where a taxi driver’s conditional threat of violence went beyond what is reasonable for self-defence. He was convicted of assault as his words accompanied by actions were found to be excessive. There were other lawful options that he could have pursued rather than making use of a threat of force.

Conclusion

The case emphasizes that courts consider the whole of the situation including available alternatives and reasonableness of the threat when evaluating whether it can be categorized as an assault.

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