Bainbridge v James - [2013] VSCA 12

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0208

IAN DOUGLAS BAINBRIDGE
IAN DOUGLAS BAINBRIDGE	Appellant/Cross Respondent
v
EDWARD JAMES and SYLVIA JOCATINE (trading as JAMES LEIGH PROMOTIONS)	First Respondents/Cross Appellants
	and
LIUZAG CUSTODIAN PTY LTD	Second Respondent

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JUDGES:	WARREN CJ and HARPER JA and KYROU AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 February 2013
DATE OF JUDGMENT:	1 February 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 12
JUDGMENT APPEALED FROM:	Bainbridge v James & ors [2011] VCC 1393 (Judge Smith)

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ACCIDENT COMPENSATION – Injury caused by criminal assault by a third party on an employee whose task was to play the role of Father Christmas at a shopping centre – Scope of duty of care owed by employer and by owner and manager of the centre where the assault occurred – Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 distinguished – Whether appellant had established that the risk of assault was reasonably foreseeable and not far-fetched or fanciful – Objective test for evaluation of risk – Role of any inferences to be drawn where no evidence called by employer or shopping centre owner about the basis for the provision of a security escort – Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 discussed – Karatjas v Deakin University [2012] VSCA 53 distinguished – Appeal dismissed and cross appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant/ Cross Respondent	Mr A D B Ingram with Mr C D N Griffin	Verduci Lawyers
For the First Respondents/ Cross Appellants	Mr J Ruskin QC with Mr S Smith	Hall & Wilcox
For the Second Respondent	Mr T J Casey QC with Mr J P Brett	HWL Ebsworth

WARREN CJ:

I invite Harper JA to deliver the first judgment.

HARPER JA:

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.

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.

The trial judge found for the appellant against his employers, and awarded damages…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bainbridge v James

Details

AGLC: Bainbridge v James [2013] VSCA 12
Case: [2013] VSCA 12
Decision Date: 1 February 2013

CaseChat Overview and Summary

In the case of Bainbridge v James, the appellant, Mr. Bainbridge, sought compensation for an injury sustained when he was assaulted by a third party while performing his role as Father Christmas at the respondent's shopping centre. The appellant argued that the respondent, who owned and managed the shopping centre, had a duty of care to ensure his safety. The matter was brought before the court to determine the scope of the duty of care owed by the employer and the shopping centre owner and manager. The case referenced the principles established in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, and considered whether the risk of assault was reasonably foreseeable.

The court examined whether the appellant had established that the risk of assault was reasonably foreseeable and not far-fetched or fanciful, applying an objective test for evaluating the risk. The court also discussed the role of inferences to be drawn where no evidence was provided by the employer or the shopping centre owner regarding the provision of a security escort, as seen in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361. The case of Karatjas v Deakin University [2012] VSCA 53 was distinguished by the court. The reasoning of the court was that the appellant had not demonstrated that the risk of assault was reasonably foreseeable. The appeal was dismissed, and the cross appeal was allowed.

The final orders of the court were that the appeal was dismissed, and the cross appeal was allowed. The court held that the appellant had not established that the risk of assault was reasonably foreseeable, and thus, the respondent was not liable for the injury sustained by the appellant. The case highlights the importance of demonstrating that a risk is reasonably foreseeable in order to establish a duty of care and liability for injuries caused by third-party criminal acts.

Orders