Vicarious liability question and answer PDF

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Vicarious liability question and answer ...

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Hayward operated a hotel. Flew, a customer at the hotel had arrived at opening for a long drinking session to drown his sorrows over the loss of his job the previous day. During the course of the day, he became increasingly offensive towards one of the barmaids. He ignored her requests to refrain from making suggestive and offensive comments to her. An argument developed late in the afternoon between them over his behaviour and he attempted to attack her. She flung the contents of a glass of beer in Flew’s face and then threw the glass in his direction, striking him in the face and causing him to lose the sight of an eye. Issue - Could Hayward be held vicariously liable for the actions of the barmaid? Rule - Vicariously Liable: For an employer to be vicariously liable, the employee must have been acting within the “course of employment”. Any conduct outside the course of employment will not attract vicarious liability. It is a question of fact whether the employee’s conduct fell within the course of employment: Bugge v Brown (1919) 26 CLR 110. The control test - If the person was employed to do work for the employer: Barmaid - primary tortfeasor - Employer and employee relationship - Hewitt v Bonvin [1940] 1 KB 188 Application – the assault did not occur in the course of her employment. The barmaid’s actions were not expressly authorised. Her actions were an independent personal act which was not connected with or incidental in any manner to the work which the barmaid was employed to perform. 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” Deatons Pty Ltd v Flew Conclusion - There must be a connection between the act or omission and the relationship outlined in. For example, the primary tortfeasor must have been acting ‘in the course of employment’ or ‘within the scope of authority’. The barmaid’s assault on the customer – Flew - did not occur in the course of her employment therefore Hayward is not vicariously liable. It could be considered an intentional act of “passion & resentment” and not an incident connected with anything the barmaid was employed to do, Deatons Pty Ltd v Flew. In this situation the customer – Flew - could always take proceedings against the barmaid for the tort of battery, as the action was intentional and direct and there was an application of force Scott v Shepherd. The reason why this rarely happens is because employees are normally not in a position to pay the damages being sought. Case Summary - Deatons Pty Ltd v Flew Facts: 

Flew alleged that he went into the bar, told the barmaid that he wanted to speak to the manager/licensee.

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The next thing he knew was waking up in hospital minus his sight in one eye.

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The barmaid however maintained that when Flew came in he was abusive and in fact attempted to hit her.

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So in retaliation she picked up a glass of beer intending to throw the contents in his face but unfortunately the glass slipped from her hand hitting him in the eye causing the loss of sight in that eye.

Issue:  Held:

Was the assault in the course of employment?

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It was not part of her duties to control the customers in the bar.

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Furthermore on her own admission she did this out of anger and as a result it was an independent personal act.

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The employer was not liable....