Court of Appeal finds in favour of Claimant who slipped on a plastic icicle in Santa’s grotto; although the Defendant had a good system of inspection, the icicle was there to be seen - Dufosse v Melbry Events Ltd 14.12.11

Comment

Melbry Events were required under the Occupiers’ Liability Act 1957 to see that visitors were reasonably safe when visiting the grotto. The question considered by the Court was whether the system had operated properly on the day: had the icicle not been noticed because it was hidden from view, or because it had been missed by Santa and his busy Elf? It is evident from the Court of Appeal’s decision that those responsible for carrying out hazard spotting are required to meet a high standard. Melbry Events should have taken additional precautions by, for example, providing for regular documented checks.

Cases such as this demonstrate how businesses must be careful to ensure that their duties are complied with at all times.

Background

On 25 November 2009, Mrs Dufosse went with five other members of her family to visit Santa in his grotto in Selfridges in London. Selfridges had contracted the operation of the grotto to Melbry Events. Mrs Dufosse alleged that, in the course of her visit, she lost her balance by treading on a plastic icicle on the floor of the grotto. Melbry argued that there was no icicle and she had simply lost her balance. Santa (Mr Warren) gave evidence that Mrs Dufosse’s son had mentioned to him that she had a balance problem, but this was not supported by the medical evidence.

At first instance, District Judge Sparrow held that Mrs Dufosse had slipped on the icicle and that was the cause of her fall. He complimented Melbry Events on the excellence of their risk assessment procedures and of their system for ensuring the safety of visitors to their grotto. The job of Santa’s Elf (Mrs Chamberlain) was to escort visitors in and out and to make sure nothing was left behind. It was the role of Santa and the Elf to make sure that the grotto was free of anything dangerous. The District Judge drew the inference that the icicle, although there, had somehow been lost to sight, close to some train carriages in the corner of the grotto. On this basis, he found that there was no breach of duty by Melbry Events.

Decision

The Court of Appeal noted that the claim had come to litigation on the basis that Melbry Events maintained that the icicle in question was not there. Lord Justice Rix considered that, if it had not come to trial on that basis, it is very doubtful that it would have come to trial at all.

Rix LJ held that ultimately the question was whether, if the icicle was there to be fallen over, was it there to be seen? In his view, if it was there to be trodden on, it was in all probability there to be seen. In his view District Judge Sparrow had taken an overly benevolent view of the performance by Santa and the Elf of their duties. The Elf had many other things to think about for the purposes of her performance. On the balance of probabilities, the correct inference to make was that on this occasion, Santa and his Elf were not as careful in taking precautions against impediments on the floor as they should have been. The claim should succeed.