Have you Santa-proofed¹ your home this Christmas? This might be the most valuable thing you can do this holiday season, as you may be liable for injury suffered by the jolly old man coming down your chimney. If you want to save Santa a broken bone or two (and find out if you are even responsible for doing so in the first place!), and save yourself a whole lot of dollars in potential negligence claims – read on!

We have queried the lawfulness of Santa’s housecalls, and now turn to consider whether Santa is owed a duty of care in your home. Giving Santa express or implied permission to pop in on Christmas Eve establishes the proximity of relationship required to give rise to the duty (Donoghue v Stevenson [1932] AC 562). But what about Trespassing Santa? You will only owe trespassers a duty where their presence, and a real risk of injury to them in your home, can be reasonably foreseen.² Santa’s presence is pretty much expected on Christmas Eve. As for what constitutes a real, reasonably foreseeable risk? Santa getting mauled by an untethered Bruno in the front yard probably qualifies. Santa getting cut by a piece of glass from your shattering window as your neighbour has burst into a high-octave Christmas song? Probably not.

How do you discharge your duty of care to Santa once established? You need only respond to dangers that a reasonable person in your position would foresee would pose a real risk of injury to Santa, and do as much as that reasonable person would do in response. What Would A Reasonable Person Do (WWARPD) raises a sleighful of other considerations, such as magnitude of risk, degree of probability of its occurrence, and the expense, difficulty, and inconvenience of taking alleviating action (Wyong Shire Council v Shirt (1980) 146 CLR 40). For example, the risk of Santa getting stuck in your chimney may be so trivial and unlikely, and the expense, difficulty, and inconvenience of enlarging your chimney to accommodate a portly visitor once a year so significant, that it could not be seriously argued that this is how a reasonable person would respond to the risk. On the other hand, the risk of Santa going up in flames by coming down the chimney into a lit fireplace is so serious and probable, and the inconvenience of putting out the fire so small, that it is perfectly feasible that a reasonable person would easily avoid the accident by putting out the fire.³

Even if you have breached your duty of care towards Santa, the connection between Santa’s injury and your breach cannot be so remote that the breach cannot reasonably be held to be the cause of the injury. If an errant banana peel near the Christmas tree sends Santa careening into the kitchen where he spies a bottle of rum, and a few drinks later, takes a dive into the shallow end of your pool where he hits his head – the connection between breach and injury may be too distant to give rise to liability.

The defences of contributory negligence and voluntary assumption of risk give rise to their own issues. If Santa suffers an injury due, in part, to his not taking care to avoid an obvious risk, are you not liable for breach at all, or only entitled to reduction in damages under the relevant State and Territory apportionment legislation? How “obvious” does an obvious risk have to be? Is climbing down a chimney an inherently risky activity, such that by proceeding to enter your home, Santa could be taken to have accepted any risks incidental to the activity, thereby absolving you of liability?

Of course, as an occupier, it may be easier to nip the matter in the bud from the outset by putting up a “Santa – Enter at Your Own Risk” sign. Although you might be doing so at your own risk - that of becoming the Grinch that stole Christmas.

The liability of occupiers to visitors on their premises is discussed in The Laws of Australia Subtitle 33.3 “Occupiers’ Liability”, the law of negligence generally is discussed in Subtitle 33.2 “Negligence”, and the defence of contributory negligence is discussed in Subtitle 33.9 “Defences”.

For more information about The Laws of Australia, click here.

1. A term used to describe the process of making your home safe for Santa’s impending visit.
2. This is the common law approach, with slight variations between the governing statutes in each jurisdiction.
3. But could an argument for contributory negligence be made in these situations by maintaining that Santa contributed to the accident by not watching his figure (getting stuck in chimney), or by not wearing a fire-retardant suit (catching fire in lit fireplace)?