Elf and Safety!

DUFOSSE v MELBRY EVENTS LTD (2011)

CA (Civ Div) (Rix LJ, McFarlane LJ, Sir Mark Potter) 14/12/2011 PERSONAL INJURY – HEALTH AND SAFETY AT WORK – NEGLIGENCE BREACH OF DUTY OF CARE : CONTRIBUTORY NEGLIGENCE : PERSONAL INJURY :

SAFE SYSTEMS OF WORK : TRIPPING AND SLIPPING : VISITOR TRIPPING OVER PLASTIC ICICLE IN SANTA’S GROTTO An event management company was in breach of its duty to a visitor who suffered a leg injury after tripping and falling over a plastic icicle during a visit to Santa’s grotto. Although a safe system had been devised for checking the floor of the grotto, it had failed on that occasion.

The appellant (D) appealed against a decision that the respondent event management company (M) was not in breach of its duty to her after a fall. D, who was elderly, had gone with five members of her family to visit Santa’s grotto at a well-known department store in London. The store had contracted the operating of the grotto to M. D fell during the visit and injured her leg. The grotto was four metres by three metres in size and was operated by two employees, one who played Santa and the other an elf. The elf’s job was to escort visitors in and out of the grotto and to ensure that everything ran smoothly and that there was nothing loose on the floor. It was also Santa’s responsibility to ensure there was no danger and he had 90 seconds in between the entry of each group of visitors to look around and check from his throne, as he was essentially immobile, that there was no danger. D’s case was that she had lost her balance by stepping on a plastic icicle, a Christmas tree bauble, on the floor of the grotto. M’s case was that she had lost her balance and that there was no icicle on the floor to be tripped over.

The witnesses included an employee of the store who had filled in an incident/accident report within 24 hours of the accident that indicated that the icicle was removed from under D’s left leg. The question for the judge was whether the icicle ought to have been seen by Santa and the elf in the performance of their duties. His view was that, since the icicle had not been seen by them and there was a good safety system in place, there had been no breach of duty; the icicle was not in plain view as it was partly hidden by a toy train which was on the floor alongside the wall.

HELD: (1) The question was: if the icicle was there to be fallen over, was it there to be seen? Even though the system used by Santa and the elf might have been excellent, the elf was concerned with many other duties and it was possible that on that occasion Santa and the elf were not as careful in the taking of precautions as they should have been.

The only proper inference on the balance of probabilities was that the icicle was there to be seen. If it was there to be stepped on, it was there to be seen. The district judge took an overly benevolent view of the performance by Santa and the elf of their duties in D’s case. (2) At the conclusion of the case, the court had been asked to rule on contributory negligence. The judge had not reached a conclusion on that matter as he had found in favour of M. D was an elderly grandmother who had gone with her family on an exciting visit to Santa’s grotto.

Including Santa, there were 8 people in a small space made even smaller by toys and two Christmas trees and the lighting was dim. The accident had happened when D, at the request of the elf, had stepped side-ways and backwards so that she was out of range of a camera. She could not have seen anything at that time as her attention was drawn on entry to the other side of the grotto where the toys were. In the circumstances, it was not D’s duty to ensure that there were no tripping hazards in the grotto; it was the duty of Santa and the elf. Therefore, there was no contributory negligence to take into account.