A decision by the Victorian Court of Appeal, that found the “risk adverse” occupiers of a suburban shopping centre had implemented necessary duty of care when an unaccompanied Santa was assaulted, confirms that a claim against a diligent owner or occupier may not be successful.
This is good news for insurers and brokers’ commercial clients and should give them piece of mind when public liability claims are pursued.
The case in question involved a Santa who was assaulted by a teenage boy outside toilets in the Milleara Shopping Centre where he was employed in 2007. Up until the time of the incident the plaintiff, Mr Bainbridge, carried out his Santa duties without incident and had been escorted by a security guard to and from the centre management office to the Santa enclosure provided by the occupier.
The court considered whether the relationship between the occupier and the plaintiff’s entry to the centre went beyond the ‘normal’ circumstances of entry and found that the mere existence of a special relationship or arrangement did not give rise to a special duty.
“Just because you are seen to minimise the risk to people that enter your premises, does not create a special duty of care,” Benjamin Karalus, senior associate at TurksLegal’s Melbourne office, said. “An owner or occupier of commercial property can go about their business without fearing you will create a further liability. There is a concerted effort by owners to minimise risk to the public.”
“The plaintiff was provided with an escort in the past but not on this occasion. Just because the occupiers provided him with an escort does not mean it has a special duty of care. It has normal duty or care to people who enter the building. The occupier happened to go a little bit further. The judge referred to occupier as risk-adverse.”
TurksLegal insurance partner Peter Moriarty said this is an important ruling for commercial property owners, occupiers and their insurers. “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 court has said that enough is enough and its decision has substantially reduced what has been an incredible burden on owners and occupiers of commercial premises.”
