In Bainbridge v James (t/as James Leigh Promotions) [2013] VSCA 12, the Court of Appeal found an employer and an owner and manager of the shopping centre where a Father Christmas was assaulted by a third party did not owe a duty of care to protect the appellant from physical injury caused by the criminal actions of a third party.

 

Facts

The appellant was employed to “dispense the small gifts and general Christmas cheer” as Father Christmas at a shopping centre. The appellant was usually provided with a security guard to escort him from his “Santa Claus throne” to the management office of the shopping centre where he changed into his casual clothes.

On 22 December 2007, the appellant concluded his shift and proceeded to the management office via a passage which led to some public toilets and then to his destination, but on his journey, a teenager verbally abused him and kicked his left knee.

The appellant sued both his employers and the owner of the shopping centre claiming each owed a duty of care to him, each were in breach of that duty, and he suffered damage as a result. The trial judge found for the appellant against his employers, concluding “the provision of a safe system of work in all the circumstances involved the provision of a security guard” but dismissed the appellant’s claim against the centre’s owners and managers.

The appellant sought for the court to overturn the dismissal of his claim against the centre’s owners and managers and contended the damages he was awarded against his employers were inadequate.

The appellant argued his employers and the owners and managers of the shopping centre almost invariably provided him with an escort for the purpose of security which they would not have done unless they foresaw the kind of danger to which he was subjected to on the date of the incident. The appellant further argued the defendants called no evidence about the extent or reality of any risk and gave no explanation of their failure to do so, which allowed the court to infer, had those parties or witnesses been called on their behalf, their evidence would not have assisted the relevant defence case.

Decision

The Court of Appeal found neither the employer nor the owner and manager of the shopping centre owed a duty of care to protect the appellant from physical injury by a third party.

An employer’s obligation is to exercise reasonable care, not to warrant safety. The court stated “the risk that the appellant would be assaulted while performing his role, or while moving between his “throne” and the rooms in which he changed clothes, was far-fetched and fanciful”. Indeed, the appellant himself stated he never, during the course of his work as Father Christmas, apprehended any physical harm to himself.

The evaluation of risk, including its foreseeability, is a matter of objective assessment. By providing an escort on most occasions, the defendants were not transforming the risk into something more real or creating a duty of care. Furthermore, where the court has no reason to think a risk is reasonably foreseeable, there is no relevant inference upon which the court can draw by reason of a lack of evidence of the extent or reality of any risk.

The Court further stated imposing a duty of care on the defendants would impose an indeterminate duty on an indeterminate class as there would be questions of when security guards were required and for whom.

The evaluation of risk, including its foreseeability, is a matter of objective assessment. By providing a readily available escort, the defendants were not transforming a risk into something more real nor creating a duty of care, where objectively, no reasonably foreseeably risk existed.

Implications

Where a court has no reason to think a risk is reasonably foreseeable, there is no relevant inference upon which the court can with greater confidence draw by the failure of the defendants to call a witness on the subject of the extent or reality of any risk.

A duty of care is not created simply because one person, without having any relevant contractual relationship with another, becomes an integral part of the operations of the other.