Over the past few months, Santa and all of his elves have been hard at work at their North Pole workshop organising gifts for all the good boys and girls across the world. However, before Santa gears up for the logistical challenge of delivering presents around the globe in 24-hours we are asking the question yule all want the answer to this Christmas: “Do I owe Santa a duty of care?” For festive legal reasons, this blog does not consider the international private law issues presented by Santa’s domicile!
A duty of care is owed by a defender (the parent/guardians of the good boys and girls) to a pursuer (Santa) if it can be proved: a duty was owed; that duty has been breached; the defender’s conduct caused the pursuer an injury and; the injury was not too remote.
The starting point of determining whether or not a duty was owed is based on the factual circumstances of each case. In our example, given we know Santa is coming let us assume you do sn-owe him a duty of care given (amongst other things) he comes every year (foreseeability) and he delivers presents to good children (proximate relationship). So, how can you ensure you do not breach the duty owed?
Well, everyone knows Santa’s preferred system of entry is via the chimney so make sure any roaring fires are extinguished in good time on Christmas Eve! That also ties in with duties owed under the Occupiers Liability (Scotland) Act 1960 so you should complete a risk assessment prior to Santa’s visit and ensure Santa has a clear and unobstructed path from the fireplace to the Christmas tree. Santa’s work is also tiring, so if you are going to leave out some milk and cookies make sure they are in date and fit for consumption. The same applies to any carrots left out for Rudolph and Co. If you have pets and the four legged friends do not do well with strangers, you should also ensure they are removed so Santa and his reindeer don’t get any festive frights!
While it is unlikely Santa has a litigious appetite this Christmas, it is always better to be safe than sorry; so to avoid Claus-ing a scene, make sure your home is safe for Santa or you could end up with a lump of coal and an Initial Writ this Christmas!
