Bainbridge v James & Ors

[2013] VSCA 12

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Tort
2. › Negligence
3. › Duty of care
4. › Employer's duty to provide safe system of work
5. › Protection of employee from criminal acts of third parties
6. › Whether risk of assault on employee playing Father Christmas was reasonably foreseeable
7. › Whether far-fetched or fanciful
1. Tort
2. › Negligence
3. › Duty of care
4. › Occupier's liability
5. › Duty to protect against criminal acts of third parties on premises
6. › Whether relationship between occupier and non-employee gave rise to duty of care
7. › Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 distinguished
1. Tort
2. › Negligence
3. › Foreseeability of risk
4. › Objective assessment
5. › Whether subjective risk assessment by defendant can establish reasonable foreseeability
6. › Whether provision of precautionary measures transforms far-fetched risk into foreseeable risk
1. Evidence
2. › Jones v Dunkel inference
3. › Failure to call evidence
4. › Whether inference available where no underlying basis for risk established
5. › Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

Quick Take

The provision of precautionary measures (such as security escorts) by an employer or occupier does not, without more, establish that the risk against which those measures were directed was reasonably foreseeable. Foreseeability of risk is assessed objectively, and the subjective risk assessment of the defendant cannot transform a far-fetched and fanciful risk into a reasonably foreseeable one. The Jones v Dunkel inference cannot be used to fill an evidentiary gap where there is no underlying basis for the risk that the uncalled evidence might have addressed.