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Christmas pudding: more pounds than dollars

Wealthy Uncle Bob is choking on his Christmas pudding and near death.

Knowing he has left you a large inheritance, can you refrain from assisting him?

The answer depends on the relationship between you and Uncle Bob.  Under our Criminal Law, there is no general duty to assist a choking person.  This is different to the law in other countries.

Under our Civil Law, a general duty to take reasonable care for the safety of dinner guests applies to the person in charge of preparing the meal.  And, there is, in effect, a higher level of responsibility if Uncle Bob is a paying guest at a restaurant (for example, enjoying Christmas lunch taking in the beautiful view at Burleigh beach) compared to Uncle Bob joining a family dinner at the home of one of his relatives at Burleigh Waters.  The person preparing the meal may or may not be the owner of the property (on which the dinner is being held) yet ownership of property can be important in the context of linking to insurance.  Meaning, that the place where the dinner is being held creates an obligation on the owner of that property because the civil law places emphasis on property ownership because of the owner’s control over the use and design of the property.  And, from a practical perspective, homeowners are likely to have insurance connected to the property and within the insurance policy is likely to be a specific provision for Legal Liability coverage.  The effect is that if the homeowner is responsible (in a legal sense) for creating or contributing to Bob’s injury (or death) then the homeowner’s insurance is triggered with the result that the insurance company will be responsible for paying compensation to Bob or his next-of-kin.

The context is a consideration of legal fault through the lens of civil law.  This involves the concept of negligence and historically is based on the civil law of tort that is intended to award financial compensation to a person injured as a result of another person’s carelessness or momentary recklessness.  The entitlement to financial compensation does not require criminal fault, so no need for the injury to be the consequence of intentional harm (which under our criminal law might constitute the offence of assault, manslaughter or murder, depending on how drastic the harm is!).  Negligence, in the civil law context, means failure to exercise reasonable care and skill.

Whether there has been negligence depends on the key question in such situations: what is the cause of Bob’s choking?  There are various possible scenarios.

One scenario involves Bob choosing to place a mountain of food into his mouth, either by placing an inordinate amount in one scoop or by attempting to consume multiple servings without waiting for each serving, in turn, to be ingested.  In that scenario, it’s likely that Bob himself will be the cause of his demise and it’s not possible for his next-of-kin to sue himself. There is an expression in our law that the tortfeasor (referring to the person who caused or contributed to the injury) cannot make a civil claim against themselves.  Another situation of this type is where a driver of a car crashes into a truck because the driver of the car failed to obey a red-light signal.  Although in Australia there is compulsory insurance connected to motor vehicles (with the obligation on the owner of the vehicle) for the specific purpose of providing compensation for personal injuries arising from car crashes, in such scenario the driver is unable to access that insurance because the accident was solely caused by the driver’s own negligence.

Another scenario is that the pudding was improperly prepared, such as cooking for too short a period of time because the chef was running late and didn’t want to make the guests impatient to be fed.  The act of premature serving of the pudding resulted in the pudding pieces being rock hard and it was that dynamic which caused a clot in Bob’s throat.  In that scenario, the chef would be held responsible for negligence in the inadequate period of baking time of the Christmas pudding cake.

Would it make any difference if the chef had warned the guests prior to any consumption of the pudding and that via the warning it was made known that it was then the guests’ own individual choice as to whether to proceed to eat or to delay and allow for further time for cooking of the pudding?  This would seem to provide a legal defence for the chef.  However, there could be more to the story such as if the chef was Japanese and gave the warning to the guests in Japanese which Uncle Bob, being an Aussie, did not comprehend because he only knew the English language and had no knowledge of the Japanese language.  Under the law, the chef would have a potential defence, with the onus of proving that Uncle Bob voluntarily, with full knowledge, agreed to incur the risk of eating the under-cooked pudding.

Interestingly, as a result of legislation enacted by the State Governments in Australia, there is now a presumption that injured persons are aware of obvious risks.  The effect is that an injured person cannot claim compensation under civil law where the harm is suffered from an obvious risk.  The rationale is that individuals should take care of their own safety, and this is now legislated such as in Queensland under the Civil Liability Act.  The legislation means that Uncle Bob (or his next-of-kin) would need to establish that Uncle Bob was not, in fact, aware of the risk.

Would it make any difference under the law if Uncle Bob was known by the chef to have consumed several alcoholic drinks prior to the chef making the warning (and even if the warning was in English) Bob’s intoxication meant he did not fully appreciate the meaning of the warning? A defence by the chef based on the warning would in those circumstances be unsustainable.  After all, it is Christmas time and it would be regular for guests like Uncle Bob to be enjoying the celebratory mood by drinking several choice bottles of Barossa wine.

What if the chef was Uncle Bob’s wife?  At common law in Australia, there existed between husband and wife an immunity from suit in tort.  This has been abolished by statute: via the Family Law Act (especially under Section 119) legislated by our Federal Government in 1975.

Plus, intra-familial immunity was never extended in Australian law to actions between parent and child.  Meaning, if Uncle Bob was 15 years of age (and, in Australia, someone is considered a child until they reach 18 years of age) and the chef was his parent, he could, in theory, recover compensation from his parent.  In practice, such a claim is seldom worthwhile unless the parent has insurance covering such liability.  Most liability policies, other than compulsory ones such as for bodily injury arising from the use of motor vehicles, exclude liability to members of the same household.

Would it make any difference if Uncle Bob was choking at a dinner that his employer had organised to celebrate the Christmas season?  An employee injured at work is generally entitled in Australia to worker’s compensation.  However, in Australia, the worker’s compensation system has never attempted to provide “full compensation” which is the scope of the civil compensation claim.  The system in Australia – like the British system on which it is based – preserves the right of employees to bring a common law claim against the employer, at least in cases of serious injury.  Such civil cases are concerned with the standard of care.  Meaning, what precautions, if any, the employer should have adopted.  This question then turns back (most likely) on whether the dinner was at a restaurant (where the employer may not have had the ability to control the preparation and timing of the serving of the meal), compared to the dinner being held at the home of the boss (where, presumably, the boss would have had direct control in the cooking of the Christmas meal).

Another possible scenario is the situation where Uncle Bob (with the other guests) had paid to attend the Christmas celebration event.  In such a situation, the organisation conducting the event will be obligated to provide the services with due care and skill.  Apart from the obligation created by common law, this legal requirement comes from the Federal Government legislation called the Competition & Consumer Act introduced in 2010.  From that government law, there is a guarantee that the services will be fit for the purpose for which they were acquired.  The rationale is that the payment of a fee (for attendance at the Christmas event) by Uncle Bob creates a commercial environment in which the service provider has the legal obligation to provide the dinner safely.

Would it make any difference if Uncle Bob had signed a written liability waiver?  While waivers are construed strictly, there always remains uncertainty about whether they will apply.  And, more importantly, liability for breach of an implied guarantee under the Australian Consumer Law cannot be excluded.  Meaning, a waiver does not prevent the organisation from conducting the Christmas dinner to be held legally responsible for Uncle Bob’s demise.

As they say, this is the season to be jolly, and since I heard that the true mark of a gentleman was the way he handles tangled Christmas tree lights (!), here I’d like to wish you encounter the untangling of any legal problems that find you during 2025.