Santa: jolly gift giver, or creeping trespasser?

In honour of the silly season, I’m taking a break from health law to venture into torts, another area that I teach into. This post is dedicated to all the hard-working students in my torts tutorial groups, and to anyone who’s ever wondered…. Can we sue Santa?

Christmas. The most wonderful time of the year. Traditionally characterized by peace, joy, goodwill towards all men (presumably women are included too), and not uncommonly, over-consumption of alcohol, processed meats, and high-sugar, high-calorie, figgy pudding.

The festive season is also a fruitful source of legal risk. Consider, for example, Uncle Bob’s defamatory comments about the dryness of the turkey, or Cousin Susan’s negligence in breaking your favorite Christmas ornament. Here we examine one of Christmas’ most legally fraught situations: the jolly bearded man flying over your house on a sleigh. Yes, that’s right: Santa.

Are you tired of sleigh bells ringing, and reindeer leaving unwanted gifts on your lawn? If so, what are your legal options?

Trespass to land

First, let’s consider trespass to land. This cause of action could arise from two aspects of Santa’s annual present delivery:

• Overflight by Santa’s sleigh; and/or
• Santa’s entry onto property to deliver presents.

An incursion into airspace can form the basis of an action in trespass where it takes place at a height that may interfere with the ordinary use and enjoyment of land (Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479). If we were to sue Santa for aerial trespass under the first scenario, a key question would be whether his flight is at such a height that it would not interfere with the claimant’s potential use or enjoyment of his or her land. However, it is likely that at least part of Santa’s flight could intrude on a claimant’s airspace, given that Santa flies low enough to land on the roofs of people’s houses.

In the second scenario, Santa intentionally enters directly onto land, meeting the basic test for trespass to land. However, we need to keep in mind that the law grants implied consent for members of the public to go up the pathway or driveway to a house in order to talk to the person inside (absent any express evidence to the contrary). Could it be said that this implied license extends to entering premises via chimney, an extremely unorthodox method of entry? There may be a stronger argument of implied consent once Santa has entered a person’s house, if stockings have been hung up for him to fill, and there are mince pies laid out for him on the mantelpiece.

Nuisance

If Santa’s flight falls outside the claimant’s airspace, then we could consider a claim in nuisance.  A cause of action would hinge on whether a the plaintiff could show some kind of interference with his or her enjoyment or use of land, for example, through excessively high-volume “ho-ho-hos” or noxious fumes emitted by reindeer polluting the airspace.

The court would carefully weigh a range of factors in determining whether Santa’s activities amount to a substantial and unreasonable interference with use or enjoyment of land. The court might take into account that any noise occurs late at night; that the plaintiff may be living under the Sydney Airport flight path and thus already subject to substantial aircraft noise; and that Santa’s present delivery brings joy to millions of children around the world (although the social utility of an activity will not prevent it from being a nuisance if the activity is considered unreasonable).

Another consideration might be that any interference is likely to be a temporary, night-before-Christmas occurrence. However, in Munro v Southern Dairies [1955] VLR 332 the court acknowledged that the loss of even a single night’s sleep could amount to a substantial interference, say if the loud ringing of sleigh bells woke you up at 2am after a busy day making Christmas cake.

In NSW, section 72 of the Civil Liability Act 2002 bars actions in trespass or nuisance on the basis of overflight by aircraft, so long as the flight is at a height that is reasonable, and the applicable air navigation regulations are complied with. Whether Santa complies with the Air Navigation Regulations 1947 (Cth) is an open question, but it may be that sections of his flight take place at a height that is unreasonably low, meaning that an action in trespass or nuisance remains open to an aggrieved plaintiff. A successful claimant could seek damages, or perhaps an injunction to prevent a similar annoyance next Christmas.

Damage by Aircraft legislation

The final issue to consider is a statutory cause of action available under the Damage by Aircraft Act 1999 (Cth), which provides compensation for members of the public on the ground who suffer personal injury or property damage as the result of an air accident.

Santa’s sleigh fits within the definition of “aircraft” in section 4 of the Act, but section 9(4) would be a critical hurdle as it limits the Act’s application to certain categories of aircraft and only some types of flights. Plaintiffs in the ACT and NT would clearly meet the requirements of section 9(4), as in their case Santa is engaged in “air navigation to or from, or within, the Territories” (s 9(4)(c)(iv)). Plaintiffs in one of the States may struggle with the provision’s requirements, but these could be met if the sleigh is classified as an aircraft “engaged in international air navigation” under section 9(4)(c)(i).

If this initial hurdle could be overcome, section 10 requires potential claimants to show that there has been some kind of personal injury or material damage caused by an impact with the aircraft, or part of the aircraft damaged in flight, or with a person, animal, or thing that dropped off or fell from the aircraft. Section 10 would be satisfied if, for example, Santa crash-landed into your house, or dropped a load of presents off the sleigh that took a chunk out of your lawn. The Act is strict liability (s 11), meaning that a plaintiff can recover without having to prove intention or negligence on Santa’s part.

If the Commonwealth Act doesn’t apply, then plaintiffs in NSW could consider a similar cause of action under section 73 of the Civil Liability Act 2002 (NSW), which imposes strict liability upon the owner of an aircraft for all surface damage caused by an aircraft while in flight, or during take-off or landing, and by articles or persons falling from an aircraft.

This blog post only scratches the surface of Santa’s liability, and there are many other aspects of Santa’s operations that may raise legal issues: how many sherries has Santa been drinking while flying that sleigh? Are the Elves paid penalty rates for their overtime work during Christmas? What kind of conditions are the reindeer kept in?

However, one aspect of good legal practice is knowing when not to bring an action. I certainly wouldn’t suggest that you really sue Santa, and any Christmas-related legal action should be brought only on the basis of advice from a properly qualified (and entirely serious) solicitor. On that note, best wishes for a relaxing, and hopefully litigation-free, festive season.