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CASE NOTE
Citation, courts, judges

Bainbridge v James & Ors [2013] VSCA 12

VICTORIAN SUPREME COURT OF APPEAL

Harper JA, Kyrou AJA, Warren CJ

Material facts of the case

1. The appellant, Mr Bainbridge, who portrayed Father Christmas at a shopping centre
concluded his shift on the 22
nd
of December 2007 and proceeded to the room in which
he was to change into ordinary clothes.
2. His journey was interrupted by a teenage boy who assaulted him.
3. At the time of the assault there was no security guard escorting the appellant.

Procedural history of the case

1. The appellant claimed damages against his employers and the owner of the
shopping centre for breach of their duty of care in the County Court.
2. Honour Judge Smith found for the appellant against his employers awarding
damages in his favour while dismissing the second claim against the centres owner.
3. The appellant is appealing the dismissal of the claim against the latter and contends

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that the damages he was awarded against his employers are insufficient.
4. The owner of the shopping centre filed a notice of contention, while the employers
have cross-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. [See 5]

Legal issues facing the court

1.Does the relationship between the appellant as Santa Claus and the second
respondent as the owner of the subject premises give rise to a duty of care on the part
of the second respondent to protect the appellant from the criminal acts of third
parties?
2. By providing a security guard on a majority of occasions on which the appellant
moved from his Santa Claus throne to the management office of the shopping
centre, did the second respondent demonstrate:
(a) an assumption of a duty of care and
(b) if the second respondent foresaw the risk of physical injury to the appellant?
3. If a duty of care is to be found, what is the extent of such a duty?

Ratio decidendi

1. A relationship between an employee and an employer does not create a duty of
care.
(a) A duty of care is not created because the employment of the appellant, without
having a relevant contractual agreement with the owner, became an integral part of
the operations of the shopping centre. employers are not guarantors for the safety

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of their employees: the employers obligation is to exercise reasonable care, not to
warrant safety. (See [12], [24], [27])
(b) 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. The provision of an escort for
Father Christmas in this case does not establish a situation of danger such as existed in
such cases as Modbury and Karatjas v Deakin University. (See [16], [17], [24], [28])

2. A foreseeable risk may impose a duty of care, however, the extent to which an
event can be foreseeable requires evidence.
(a) A party by being unusually risk-adverse providing additional protections for
employees upon his or her premises despite an unrealistic risk, based on an objective
assessment, cannot transform that risk into a foreseeable one. (See [16], [18])
(b) This was not an instance of a high degree of foreseeability, and predictability
based on any evidence of prior, preventable criminal conduct, or threats of such
conduct. It was not therefore an instance giving rise to a duty of care. (See [8], [13],
[24])
(c) The assault upon the appellant could not have been foreseen any more than the
chance of any other person in a public place during the time when the public is
present might be assaulted. [See 13]

Obiter Dicta

1. The absence of evidence of the existence of a threat in this case and in general
makes it 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. (See [18])

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2. The guards were already present at the shopping centre, and were, as the appellants
experience demonstrated, generally available. Hence, their assistance in the
movements of Father Christmas through the shoppers and their children to his
destination was not conducive of a duty of care. (See [19])
3. Imposing a duty to protect on those who engage in the role of Father Christmas in
these circumstances may result in a burden which would detract from the atmosphere
of the holiday of Christmas. (See [21])

Result and Orders

The Victorian Supreme Court of Appeal found that the employers of Mr Bainbridge
and the owner of the shopping centre did not have a duty of care to him and that they
were not liable for damages for the incident on the 22
nd
of December 2007. Harper
JA, Warren CJ, Kyrou are in unanimous agreement.

1. The cross appeal of the first respondent is allowed.
2. The initial judgment of Honour Judge Smith dated 8
th
December 2011 against the
first respondent and paragraph 1 of the orders made 14
th
December 2011 be
overturned and as a result therefore a judgment is delivered for the first respondent
against the appellant.
3. The appellant pay the first respondents costs of cross-appeal and trial.
4. The appeal by the appellant is dismissed.
5. Appellant ordered to pay costs of the first and second respondents of the appeal.



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Essay Response

Consideration of a wide range of criteria by judges in decision making aids the
development of the law of negligence and the common law generally. A range of
criteria increases the chance of a precise judgment, reflective of the appropriate result
on a case by case basis. Questions of fairness, practicality and justice
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amongst
others are necessary in consideration for legal change to reflect moral and social
standards. A common law system which refutes the use of a wide set of criterion fails
to reflect aforementioned values and does not evolve at a desirable rate leading to
ineffectiveness and stagnation.

The rigidity of the doctrine of stare decisis may negate the distribution of justice if
outdated principles continue to be used in cases where they are no longer applicable
and a more generic criteria is not used to determine outcomes. Honour Harper JA
elaborates that not only does liability in negligence turn on foreseeability and
proximity, but that questions of fairness, just outcomes, considerations of existing
and future policies must also come into play (Bainbridge v James & Ors [2013]
VSCA 12 at [12]). The law of negligence must leave room for an interpretation
outside the scope of the rigid guidelines of precedent, reasoning in [22] Bainbridge
[2013] it would impose an indeterminate duty on an indeterminate class suggests
such a consideration, resulting in a balanced decision. Honour Harper enunciates the
importance of a wholesome consideration of criteria in the law of negligence and
common law generally, to make accurate distinctions of fact and hence appropriate
judgments. Fitzpatrick v Sterling Housing Association Limited [1998] Ch 304

1
Bainbridge v James & Ors [2013] VSCA 12, [12] (Harper JA)

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demonstrates the ineffectiveness of precedent to the extent of arguably
institutionalising discrimination.
2
Fitzpatrick [1998] is an example of the failure of
common law to adapt and the injustices of a system lacking flexibility. A set of
provisional guidelines that reflect principles of equity, used to aid the judicature
would improve the effectiveness of judicial decision making and the development of
the common law.

Law has a moral authority which is obeyed largely because of its reflection of societal
values and feeling of positive obligation.
3
Law has traditionally been seen as an
autonomous mechanism, separate from the law makers deriving authority from
principles of fairness, applicability, and justice. If a broader criteria is not employed
by the courts, judgments will over time fail to reflect the moral authority which the
majority look for in the law. A legal system which neglects changing social
expectations will create tensions between judiciary and executive bodies and the
community.
4
The law must change with time and the people in order to remain the
law of the people, Ward LJ suggests in Fitzpatrick [1998] I have endeavoured to
reflect public opinion as I see it reflecting such sentiment.
5
A common law system
without criteria from which the law derives its authority would cease to have meaning
for those who it seeks to govern, hence, a judiciary body in a common law system
must be subject to a wide range of guidelines to interpret and ultimately shape the law
in the way which society continues to evolve. Komarek describes cases as
experiments providing courts with authority independent from their position in the

2
Fitzpatrick v Sterling Housing Association Limited [1998] Ch 304
3
Patrick Parkinson, Tradition and Change, Ch. 2: The Western Idea of Law pp. 22-24
4
Catriona Cook, Laying Down the Law, (Lexis Nexis 8
th
Edition 2012), pp. 136-138
5
Jeffrey Jowell, The rule of law and its underlying values, in Jowell and Oliver (ed), the Changing
Constitution, OUP, pp. 5-10

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institutional hierarchy
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, the courts possess the crucial function of interpretation, and
are in the best position to examine the criteria which develops common law.

The rigidity of the common law system and the principles of precedent are not
flexible enough to achieve fair outcomes as social values change. The system does not
achieve justice for the individual and in the long run the law will become outdated and
lose its authority. In order to evolve with changing perceptions of justice a criterion
must be used in the interpretation of law by judges. Such a criterion would address
issues referred to by Honour Harper JA creating a system of progressive legal change
that would evolve with the majority and remain an autonomous mechanism which
creates a positive obligation, promoting compliance and thus developing the law of
negligence as evident in Bainbridge [2013] VSCA 12 and the common law as whole.



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Jan Komarek, Reasoning with Previous Decisions: Beyond the Doctrine of Precedent, LSE Law, Society
and Economy Working Papers 8/2012