The Victorian Court of Appeal has reversed the decision of a County Court Judge awarding $80,000 to a Father Christmas who was kicked in the knee by a pimply youth on his way from his throne to his dressing room. Judge Smith’s decision is here, the Court of Appeal’s here (Bainbridge v James [2013] VSCA 12. Vincent Verduci & Co’s great first instance triumph was not to endure; the Chief Justice and Acting Justice of Appeal Kyrou agreed with Justice of Appeal Harper’s restrained judgment which was that the first instance judgment was tosh and that the risk of violent assaults on Father Christmases at shopping centres is fanciful and far-fetched so as not to give rise to a duty of care to prevent it, accepting the submissions of the great Jeremy Ruskin QC on this important legal controversy. Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 has its limits.
The twice bankrupt one-time fraudster who had been reduced to giving out trinkets supplied by the shopping centre to snotty children the better to encourage thoughtless consumerism had sued not the pimply youth, you see, but they whom he claimed to be his employers (they said they were his agents) and the owner of Milleara Shopping Centre in Avondale Heights. His case centred on the absence of a security guard on this occasion, in contradistinction to most other occasions when a security escort had been provided for the journey from the throne to the dunnies where Father Christmas civvied up en route to the car before hearing home to the missus. Though he had never himself apprehended the faintest threat to his person qua Father Christmas, his employer and the Centre should have, he contended. But for the absence of a security guard on this occasion, he contended, the youth would not have kicked him in the knee. Father Christmas pointed to the defendants’ telling ‘unexplained’ failures to call evidence ‘about the extent or realilty of any risk’ of pimply youths kicking Father Christmases in the knee on the way back to their dressing rooms, and invoked the rule in Jones v Dunkel.
Harper JA said: Continue reading “Pimply youth’s fraudster Father Christmas Avondale Heights outrage”