A person employed as a Santa by Milleara Shopping Centre in the Melbourne suburb of Keilor has failed in an appeal to the Victorian Court of Appeal, where he argued the shopping centre failed to protect him against an assault.
The Santa had finished his shift and was on his way to the room to change into his ordinary clothes when he was interrupted by a teenage boy who assaulted him.
He sued both his employers and the owner of the shopping centre on the basis that each owed him a duty of care, that each was in breach of that duty, and that he suffered damage as a result.
Up until the time of the incident, the Santa had been escorted by a security guard to and from the centre management office to the Santa enclosure provided by the occupier.
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However, the Victorian Court of Appeal found the “risk averse” occupiers of a suburban shopping centre had not crossed the line to duty of care when the unaccompanied Santa was assaulted.
Justice Harper found the risk the Santa 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” and could not have been foreseen.
“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,” he found.
Benjamin Karalus, senior associate at Turks Legal, told SmartCompany the Santa had tried to base his argument on the shopping centre providing him with an escort to the changing rooms on previous occasions, but not on this occasion, creating a duty of care.
“The court found just because an occupier is risk adverse doesn’t mean it creates some sort of special duty of care,” he says.
“While the court found there were special steps the Santa took on other occasions, they did not create a foreseeable risk.”
Karalus says the case is an important ruling for commercial property owners, occupiers and their insurers as there has been a long-running debate as to where owners and occupiers of retail complexes draw the line between what can be considered normal circumstances for entry to the premises and a duty of care.
“The lesson for business is not to be scared about taking steps to guard against risk; just because you guard against risk does not create a special duty of care you have to fulfil after,” he says.
“Particularly in a sector where occupiers are increasingly aware of taking steps to minimise risk to entrants, there is the worry if we do this does it mean we are admitting liability for future or past incidents, and that is not the case at all,” he says.