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:

’16  In my opinion, neither of these bases support the conclusion to which the appellant would have this Court come.  First, the evaluation of risk, including its foreseeability, is a matter of objective assessment.  The fact that someone who is unusually risk-adverse provides his or her employees, or those who come upon his or her premises, with protections against a risk that is on an objective assessment far-fetched or fanciful, cannot transform that risk into something more real, or create a duty of care where, objectively, no reasonably foreseeable risk exists.  In other words, the existence or otherwise of a reasonably foreseeable risk cannot be determined by having regard to what the appellant’s employers, or the owner of the centre, subjectively thought.

17  Nor can the existence of the risk be determined by drawing inferences from the actual provision of an escort to the appellant in his role as Father Christmas.  As the High Court said in Kuhl v Zurich Financial Services Australia Ltd,[3] a second limb of the rule in Jones v Dunkel is that the failure to call a witness may also permit the Court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn.[4]  It follows that, where the Court has no reason to think that a risk is reasonably foreseeable – because it is not inherently so, or because the person asserting the risk has not discharged the onus to prove that assertion – there is no relevant inference upon which the Court can with greater confidence draw.

[3]               (2011) 243 CLR 361, 384 [63].

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