Bainbridge v James & Ors [2013] VSCA 12

1 I invite Harper JA to deliver the first judgment.

2 There are two central issues in this melange of appeal and cross-appeal. Each has its idiosyncratic interest. The first of these goes to the extent of an employer's undoubted duty to provide a safe place and system of work for his or her employees. It requires the Court determine whether the employers of a man who, in the course of his employment, is asked to play the role of Father Christmas in a shopping centre, owes a duty of care to protect that employee from the criminal acts of third parties.

3 The appellant, who is the Father Christmas at the epicentre of this litigation, had concluded his shift. In a routine which he had followed without incident many times before, he was proceeding to the room in which he was to change into ordinary clothes. On this occasion, however, his journey was interrupted by a teenage boy who assaulted him. The appellant subsequently sued both his employers and the owner of the shopping centre. He claims that each owed a duty of care to him, that each was in breach of that duty, and that he suffered damage as a result.

4 The trial judge found for the appellant against his employers, and awarded damages in his favour. On the other hand, his Honour dismissed the claim against the centre's owner. The appellant now asks this Court to overturn the dismissal of his claim against the latter. He also contends that the damages he was awarded against his employers are inadequate.

5 The owner of the shopping centre has in turn filed a notice of contention, while the employers have, by way of cross-appeal, appealed against the finding that they were 'liable to the [appellant] for damage sustained as a result of an assault occurring on 22 December 2007' - which is the assault the subject of this litigation.

6 The second of the two central issues before this Court arises from the first of the appellant's grounds of appeal. It is whether 'the relationship between the appellant as Santa Claus and the second respondent as the owner of the subject premises gave rise to a duty of care on the part of the second respondent to protect the appellant from physical injury resulting from the criminal acts of a third party.'

7 The second and third of the appellant's grounds of appeal seek to bolster the first ground by asserting that the trial judge ought to have found that, by providing a security guard 'on almost all occasions' on which the appellant moved from his 'Santa Claus throne' to the management office of the shopping centre, the second respondent demonstrated (i) 'an assumption of a duty of care' and (ii) that the second respondent foresaw the risk of physical injury to the appellant. In either case, as the grounds of appeal would have it, a duty of care thereby arose to protect the appellant from 'the risk of physical injury resulting from the criminal acts of a third party.'

8 Most of those who become aware of this very unfortunate attack upon someone as generally well-loved as Father Christmas would, I think, say that it came out of the blue, and categorise it as almost bizarre. There was nothing in the evidence to suggest that the small and otherwise ordinary shopping centre in question exposed those who played Father Christmas at it to any greater risk than that run by others in that role elsewhere in Australia. Indeed, this litigation produced no evidence of any other Father Christmas, anywhere, being subjected to physical injury resulting from the criminal acts of a third party.

9 The appellant's experience, therefore, appears to be unique. Certainly, nothing like this had ever happened to him before. He first assumed the role in the weeks preceding Christmas 2006. He performed those duties without incident, and returned to repeat the exercise the following year. On 22 December 2007, at the completion of his shift, he set out for the management office, where he was to change into his street clothes. He was without the escort which frequently accompanied him. His journey of between 100 and 150 metres took him down a passage which led to some public toilets and then to his destination. As he reached the entrance to the toilets, a youth of between 13 and 16 years of age verbally abused him and then kicked him in the region of his left knee.

10 The appellant had, before that incident, been the object of occasional snide remarks, but nothing more. He had never apprehended danger, but when he was told by his employers that he would be escorted from the change rooms to the Father Christmas throne he of course had no objection. And a regime was established pursuant to which escorts were frequently provided for him. They were doubtless helpful in clearing his path of children and other visitors to the centre as he moved to the place from which he would dispense the small gifts and general Christmas cheer which it was his job to bestow.

11 It is the provision of the escorts, together with the fact that none were present when the assault occurred, upon which the appellant's case against both his employers and the owners of the shopping centre is principally based. The appellant argues that they provided security. It is that aspect of their presence, rather than that of assistance in clearing the path, which he emphasises. They would not have been provided, he contends, unless his employers and the owner of the centre foresaw the kind of danger to which he was subjected on 22 December 2007. And if they foresaw the danger, the law should conclude that it was foreseeable in the sense used in analyses of the law of negligence. Not only that, but the provision of the escorts created a relationship between the appellant and the shopping centre owner which gave rise to a duty of care - a duty which was breached by the absence of an escort at the time of the assault in question.

12 Liability in negligence turns on foreseeability and proximity, the total relationship between the parties, and questions of fairness, policy, practicality, proportion, expense and justice.[1] Consistently with this, the law has always taken the position that employers are not guarantors of the safety of their employees: the employer's obligation is to exercise reasonable care, not to warrant safety. There is, of course, a relationship of proximity between all employers and each of their employees; but unforeseeable risks are not covered by its mantle.

13 In my opinion, 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. The assault upon him could not have been foreseen as anything more than the possibility that any person in a public place during times when the public is present might be assaulted. In the absence of particular reasons why danger might be apprehended, no visitor to a shopping centre would expect to be assaulted while there.

14 The success of the appellant's case depended upon the existence of a reasonably foreseeable risk against which his employers, or the owner of the shopping centre, or both, had a duty of care to protect him. The onus of proving the existence of such a risk therefore fell upon the appellant. He attempted to discharge it in two ways. First, he relied upon the fact that the owner, with the active acquiescence of the employers, almost invariably provided him with an escort to and from his throne. That escort consisted of a security guard supplied by the owner. The duties of that guard were job-specific: namely, to provide security. It followed, or so the appellant contended, that both his employers and the owner foresaw the risk that he might be assaulted; and if they foresaw a risk, the court should accept that that risk was not far-fetched or fanciful.

15 The second basis upon which the appellant sought to discharge the onus of proving his case was the fact that the defendants (his employers and the owner) called no evidence about the extent or reality of any risk, and gave no explanation for their failure to do so. In that circumstance, the rule in Jones v Dunkel[2] operated in his favour to enable the Court to infer that, had those parties or witnesses on their behalf been called, their evidence would not have assisted the relevant defence case.

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.

18 In the absence of evidence of the existence of a threat it would, it seems to me, be wrong to impose upon those who engage others to play Father Christmas the obligation to provide protection for them in the form of a security guard. If there were an attempt to impose such a duty, there would be a question about its metes and bounds. Is a guard necessary only when moving around? Or only when approaching public toilets? Or only in corridors?

19 The trial judge was influenced by the fact that persons employed at the centre as security guards had commonly been made available to the appellant, and that his employers had indicated as much when the appellant himself was first employed. He considered it 'extremely unlikely that such an escort would have been provided for no good reason'.[5] That is so. But it does not follow that the reason was principally to protect Father Christmas from attack. The guards were already present at the shopping centre, and were, as the appellant's experience demonstrated, generally available. An obvious way to have them fill otherwise empty time would be to get them to assist the movement of Father Christmas through the shoppers and their children to his destination.

20 Shop assistants at city and suburban shopping centres are not provided with personal security protection unless there is some specific need for such protection. There is no reason to think that the mere donning of the accoutrements of Father Christmas would take the wearer out of the protective regime which generally covers those shop assistants who serve in the shops by which he or she is surrounded. But Father Christmas would be assisted, as ordinary shop assistants would not, by an escort on his arrival and departure.

21 I therefore respectfully disagree with the trial judge in his conclusion that 'the provision of a safe system of work in all the circumstances involved the provision of a security guard.'[6] To impose such a duty on those who engage others to play the role of Father Christmas in circumstances similar to those which obtained during the appellant's employment as such would be to saddle them with a burden which in my opinion would be quite unnecessary. It would possibly have the consequence that Father Christmas would become a rarity at shopping centres and elsewhere; and many children would be deprived of the innocent pleasure of an encounter with that dispenser of excitement and awe.

22 It would also impose an indeterminate duty on an indeterminate class. One thinks of corridors in shopping centres used during ordinary business hours by the public to access public toilets; indeed, any slightly out of the ordinary activity otherwise taking place in perfectly ordinary circumstances which might by some chance attract wayward criminal behaviour.

23 The cross appeal by the employers must, for these reasons, be allowed.

24 As I have noted, the appellant's claim against the second respondent (the owner, occupier and manager of the shopping centre) failed at trial. His Honour held that there was no breach of such duty of care as would apply were injury or damage to be caused by the state of the premises, or as would impose a requirement to protect against injury caused by criminal acts committed by third persons. The second respondent did not employ the appellant, nor did it have any control over the appellant's employer. This was not an instance of a 'high degree of foreseeability, and predictability' based on knowledge of 'previous, preventable, criminal conduct, or threats of such conduct'. It was not, therefore an instance giving rise to the duty described by Gleeson CJ in Modbury Triangle Shopping Centre Pty Ltd v Anzil.[7] The mere fact that the owner had the capacity or ability to provide a security guard to the appellant did not give rise to a duty to do so.

25 In my opinion, the trial judge was right to dismiss the appellant's claim against the second respondent. The approach taken by the appellant seems to fall squarely within the observations made by Gleeson CJ in his judgment in Modbury about the need to properly identify the legal basis for the duty being alleged:

References to duty of care, breach of duty, and causation provide convenient subheadings for a judgment, but in many cases the concepts require no further analysis. In other cases, of which the present is an example, there is a real issue as to the scope of legal responsibility. Such an issue cannot then be resolved by a detailed recitation of the facts, the repetition of the standard rubrics under which discussion of the tort of negligence is commonly organised, and an appeal to common sense.[8]

26 In his written submissions of 28 August 2012, and in oral submissions put on his behalf this morning, the appellant stated that he does not rely upon the fact that the second respondent was the owner and occupier of the shopping centre and thus in physical control of it. Rather, he relies upon the facts that the owner desired to have Father Christmas present, that it derived benefit from that presence, and that the appellant became in this way 'an integral part of [the owner's] operation leading up to Christmas'.[9] Moreover, the owner determined where the throne would be, where Father Christmas changed into his Christmas outfit, often supervised the appellant's performance, and provided not only the escort for the journeyings of Father Christmas at the beginning and end of his shifts, but also the gifts which were to be distributed by the appellant as part of his duties. These are matters which, according to the appellant, 'take [him] out of the ambit of Modbury and into the relationship between the parties which, it is submitted, gives rise to a duty of care.'[10]

27 In my opinion, such a relationship is in the circumstances of this case irrelevant. If there is no reasonably foreseeable 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. And this is so even where the other party provides support to the other which might properly be described as wholly or partly protective. There is a risk attached to almost every human endeavour. It may be the case on occasion that protection is afforded even against risk that is not reasonably foreseeable. But while that risk remains one properly so described, there can be no duty of care to avoid it, even in circumstances where unnecessary steps have been taken to do so. It would be wrong were the subjective concerns of the risk-averse person to set the standard of care by which other persons are bound.

28 In any event, the evidence in this case does not, it seems to me, establish that the provision of an escort for Father Christmas had as one of its purposes the protection of him against criminal assaults. There were good reasons why his travel to and from his throne might be assisted by a second person clearing his way. And the evidence certainly does not establish a situation of danger such as existed in such cases as Modbury and Karatjas v Deakin University.

29 In oral submissions this morning, senior counsel for the appellant's employers put into nine-point form the response he wished to make to the submissions of the appellant. I have dealt with some of these above. Those nine points were, in substance:

(i) The error in framing the duty in this case as a duty to provide security was that, although foreseeability was ostensibly used as the test, in reality the risk was apparent only in hindsight.

(ii) The only evidence on which his Honour relied in concluding that the content of the duty was to provide security derived from the fact that the appellant had been told that a security guard would accompany him as he moved to and from his throne. It follows that, had no such statement been made, no duty would have arisen. If a person is risk adverse, then he or she would impose upon himself or herself a duty to provide a guard which would not be imposed on others who were not risk-averse but otherwise in a like position. That cannot be correct.

(iii) The evidence was that the purpose of providing the guard was not to ensure security from harm, but to merely to escort; there was no evidence that the purpose was to provide protection.

(iv) The rule in Jones v Dunkel does not extend to allow gaps in the evidence to be closed.

(v) There was no evidence that, on the two occasions when he walked without the guard, the appellant had any hesitation in doing so.

(vi) There was no security guard during 'throne time'. It would be illogical, if it is said that the point was protection, not to have a guard at this time, where there was no evidence that the appellant was any less vulnerable at such a time.

(vii) The appellant had never been attacked before. The appellant's own evidence was that the risk was negligible or nil.

(viii) There was no evidence from the appellant or from any other source about the purpose of the guard.

(ix) To succeed, the appellant had to frame a duty not merely to provide a guard for security, but in addition, to guarantee that the guard was there at all times during which the appellant walked to and from the changing room to the 'throne'. This would be an impractical duty. The evidence showed that the security guard was occasionally absent at those times, as on the occasion of the assault. He did, however, arrive a matter of seconds after the attack.

30 I add that, as counsel pointed out, the appellant called no evidence going to the purpose of the provision of the appellant's escort, and himself accepted that he never during the course of his work as Father Christmas apprehended any physical

harm to himself. These points add strength to the conclusions to which I have come. I would for these reasons dismiss the appeal against the decision of the trial judge to dismiss the claim against the second respondent.

31 In these circumstances, the Court heard counsel for the appellant on the question of damages and other matters. Having done so, and having read in full all the written submissions provided by the appellant, I am of the opinion that the appellant has not made out his case on the issues covered by those submissions.

1. The cross-appeal of the first respondent be allowed.

2. The judgment of his Honour Judge Smith dated 8 December 2011 against the first respondent and paragraph 1 of the orders made 14 December 2011 be set aside and in lieu thereof there be judgment for the first respondent against the appellant.

3. The appellant pay the first respondent's costs of the cross-appeal and the trial.

5. The appellant pay the costs of the first and second respondents of the appeal.

[1] Karatjas v Deakin University [2012] VSCA 53 (Nettle JA, with whom Hansen JA and Kyrou AJA agreed).

[2] [1959] HCA 8; (1959) 101 CLR 298, 312.

[3] [2011] HCA 11; (2011) 243 CLR 361, 384 [63].

[5] [2011] VCC 1393, [59].

[7] (2000) 205 CLR 254.

[9] Appellant's submissions, 28 August 2012, [8].