Santa's grotto loses health and safety appeal

Health and Safety Bulletin (HSB) reports on a festive health and safety judgment from the Court of Appeal.

In 2011, shortly before Christmas, the Court of Appeal gave a unanimous judgment (on the British and Irish Legal Information Institute website) concerning liability for injuries sustained by a visitor on a trip to meet Santa Claus at a London department store. We have saved the judgment for a year so that HSB readers can share during the festive season the deliberations of Lord Justice Rix, who gave the Court of Appeal's lead judgment. Wherever possible, for reasons that will become apparent, we have quoted Rix LJ's judgment in full.

It should, however, be remembered that the victim fractured her thigh in the fall and needed surgery, and that slips, trips and falls are one of the most frequent causes of workplace injuries (see box 1). And Rix LJ, while clearly savouring the spirit of the season, did offer interesting observations on the extent of an organisation's responsibility for events that go wrong - even when the trial judge had complimented the grotto operator on the excellence of its risk assessment procedures and on its system for ensuring the safety of visitors to the grotto.

The icicle in the room

On 25 November 2009, Joan Dufosse and five members of her family, including two grandchildren, visited Santa in his Oxford Street grotto at Selfridges in London's West End. While in the grotto, Dufosse fell and injured her leg. Dufosse claimed she had lost her balance after treading on a plastic icicle on the floor of the grotto, and sued Melbry Events, which had been contracted by Selfridges to operate the grotto. Melbry Events countered she had lost her own balance and that there was no icicle at all in question.

At trial in Southampton Court, District Judge Sparrow considered the issue of liability: why had Dufosse fallen, and was it anything to do with a breach of either statutory duties or negligence? The judge found against Dufosse, who appealed to the Court of Appeal, which overturned the decision.

Giving the Court of Appeal's lead judgment on 14 December 2011, Rix LJ noted that the dispute had proceeded to trial "even though it was known within 24 hours of the accident that it was the view of Miss Tiffany Scott, a sales assistant and first-aider employed by Selfridges, that, to quote the accident/incident report form, which she completed on the day in question, 25 November 2009: 'Mrs Dufosse slipped on a cylindrical shaped icicle ornament which was on the floor. When she slipped over, she hurt her left leg from thigh to knee. Her son asked if I could call for an ambulance.'" The next day, Scott elaborated in a written statement: "I asked directly if she had fainted, as this is what I was told. She surprisedly [sic] said 'No.' Her husband at [this] point interjected and said she had slipped on a Christmas ornament which was on the carpet. He grabbed an icicle-shaped ornament from under her left leg, which I did not notice before. He showed it to me and said: 'This is what she tripped on.' And he asked me to make sure I made a note of it."

Rix LJ noted that the trial judge regarded Scott as a particularly useful witness, as she was independent of both Melbry Events and Dufosse and had nothing to gain either way from her evidence to the court, in which she also acknowledged: "I didn't see the icicle. I didn't realise it was there until Mr Dufosse senior pulled it from under her leg, in which case I then would then have decided that must have been what she slipped on." Rix LJ noted there was no cross-examination of Scott at trial other than to confirm that she had not been in the room at the time of the incident and therefore could not say what Dufosse had slipped on.

Rix LJ pointed out, however, that it was "clear" from her oral evidence, but also "clear enough from her written statement", that the icicle was "taken from under Mrs Dufosse's left leg while she was in the room, so it was only at the point that it was brought to light by Mr Dufosse that she saw the icicle." She had, said Rix LJ, reached her conclusion "partly on the basis of what Mr Dufosse said to her, partly on what she was shown as she saw the icicle in question, and partly on the basis of inference".

Claim was not a "try-on"

Despite this "essentially contemporaneous report and witness statement from the independent first-aider", Rix LJ noted: "Melbry Events fought the case on the basis that there was no icicle there at all to be tripped over." Melbry Events believed Dufosse collapsed of her own motion and it was therefore, he said, a "matter of logic" that the company believed the claim was a "'try-on', to use the vernacular". Rix LJ added: "Interestingly enough, Santa (David Warren) ... gave evidence that Mrs Dufosse's son had mentioned to him that Mrs Dufosse had a balance problem. Santa's assistant, the Elf (Sarah Chamberlain) ... said nothing about that in her witness statement, albeit she recalled it in her oral evidence."

"The trial judge rejected that evidence," continued Rix LJ, "albeit in the terms of saying that: 'I have to discount that as being anything of any particular significance or relevance.'" The trial judge, said Rix LJ, went on to conclude that there was very clear evidence that she had had no such balance problems, and that it was "also clear from her medical records that there was no question of her suffering from any form of vertigo nor any proneness to falling".

Given the evidence, Rix LJ commented, "and the presentation to the court of the icicle in question, which the family had retained ... it was and is clear that there was an icicle in the room. There was an icicle removed from beneath Mrs Dufosse and the judge in those circumstances unsurprisingly drew the inference that Mrs Dufosse had slipped on the icicle and that that was the cause of her fall."

The view from Santa's throne

"None of that," said Rix LJ, "is any more in dispute. The question was whether there had been a breach of duty in negligence. The judge found there was no breach of statutory duty in making a proper risk assessment [and] ... was able to compliment Melbry Events on their risk assessment systems; indeed Melbry Events were able and entitled to say that they had never had any accident occur before over many years of such kind of eventing."

The room where the incident occurred measured four metres by three metres. Visitors entered through a door in one wall and exited by another door. It took around 90 seconds for one set of visitors to exit the room before the next group entered. In the corner of the room, said Rix LJ, there "sat Santa on his throne with a Christmas tree on either side of the throne. As he sat in his throne, Santa looked across the room and had a good vision of, what was, after all, a relatively small area, of the whole room, other than that part of it which lay in the corner against which his throne was drawn."

There were toys lying around in the corner of the room across from the throne and, to the right of the toys, "immediately across the wall opposite Santa's throne - what has been described as the wall to the right of the door through which Mrs Dufosse and her family entered - were the carriages of a toy train, in which various soft dolls ... were placed as passengers." The carriages ran from the pile of toys all the way up to the wall with the entrance door.

Elf and safety

"The job of Santa's assistant, the Elf," Rix LJ said, "was to escort the visitors in and out, and also to make sure that nothing was left behind by the visitors, as often may happen with excited children and concerned adults, and also to make sure there was nothing going wrong with the enterprise as a whole, nothing loose on the floor which might create a danger to anyone, and so forth. That was also Santa's responsibility, to view his grotto, so to speak, and to make sure that it was free of anything dangerous."

"Santa and the Elf," continued Rix LJ, "gave evidence that they were aware of their duties and had complied with their duties, and had seen no icicle. The lighting in the grotto was dim but the evidence of Santa and the Elf was that it was bright enough to have shown up the icicle against the background of the dark carpet if it was there to be seen."

These were the circumstances, said Rix LJ, in which the trial judge had to decide whether or not there had been a breach of duty. The question was, therefore, "whether it ought to have been seen by Santa or the Elf in the performance of their duties". Rix LJ summed up the judge's view that, "since the icicle had not been seen by Santa or the Elf, and since there was a good system in place ... and since the judge ultimately must have trusted Santa and the Elf to have been performing their duty, it had to follow as a matter of inference that the icicle, although there, had somehow been lost to sight close to the train carriages that I have mentioned, which is where Mrs Dufosse [fell]."

Santa and Elf very busy at Christmas

Mrs Dufosse was in the corner of the grotto where the train carriages were situated. She had moved slightly to her left for the purposes of a photograph when she fell, recounted Rix LJ. "Ultimately, the question is: if the icicle was there to be fallen over, was it there to be seen?"

Rix LJ believed the icicle "had to a sufficient extent to have been proud of the railway carriages for Mrs Dufosse to have tripped over it. It is quite possible to understand that for all the excellence of the system and for all the concern of Santa and the Elf to perform their duties, nevertheless the Elf - who was concerned with many things and in particular with making a good entrance leading in the children and the family, having in mind the importance of directing their attention away from Santa's throne behind the door into the near distant corner of the pile of toys before they all discovered, with some surprise, Santa on his throne - had many other things to think about for the purposes of her performance than an icicle on the floor."

As for Santa himself, said Rix LJ, it was true that for 90 seconds between visitors, he sat "on his throne immobile with nothing else to do than to survey his dominion for the sight of any icicles on the floor. But if the question is: what is the correct inference to make as a matter of probabilities, either that the icicle on which Mrs Dufosse fell, although there, was not there to be seen, or that on this one occasion, Santa and his Elf were not as careful in taking precautions against impedimenta on the floor as they should have been; then, in my judgment, the proper and indeed only possible inference, ultimately, is that on the balance of probabilities, the icicle was there to be seen. We know it was there; if it was there to be trodden on, it was in all probability there to be seen."

Rix LJ added that: "In truth, this was very much a fall-back defence of Melbry Events. For whatever reason, this litigation came to trial on the basis that the icicle was not there. If it had not come to trial on that basis, it is very doubtful that it would have come to trial at all. Be that as it may, in my judgment, the learned district judge took an overly benevolent view of the performance by Santa and the Elf of their duties in this case." As such, he allowed Dufosse's appeal.

Icicle was in "plain view"

Lord Justice McFarlane agreed with the lead judgment of Rix LJ, and explained why the trial judge had erred when he said: "That then leaves us with this question I have been gently hammering away at, which is: where was [the icicle] at the time of the incident? Was Mrs Dufosse close to the wall? There was a train just under her feet, or just behind her feet, which is about eight or nine inches wide. Santa and the Elf did not see it."

The trial judge, said McFarlane LJ, had relied on the last sentence, "Santa and the Elf did not see it", to found his conclusion that the icicle was not in plain view and was not obvious. Dufosse's only ground of appeal was that the evidence did not support this conclusion, ie for her to step on the icicle, it must have been within the view of Santa and the Elf before she entered the grotto.

"That," McFarlane LJ said, "is the error and nowhere, once the judge has posed the question ... does he bring into the equation the fact - because that is the fact he had only a short time previously found - that Mrs Dufosse did stand on the icicle and he does not evaluate how that can have happened if the icicle was not in plain view. That was in my view a fundamental error in the judge's approach to the evaluation of his conclusion and arose no doubt on the very favourable view he had formed, and was entitled to form, of Mr Warren and Miss Chamberlain [Santa and the Elf] and the system in general, but it was an error and I too would allow the appeal for those reasons."

The third judge, Sir Mark Potter, said only that he agreed with both judgments.

Box 1: Slips and trips

On average, slips, trips and falls (on the Health and Safety Executive website) on the same level account for 50% of all reportable accidents to members of the public that happen in workplaces (which would include Santa's grotto in Selfridges' Oxford Street department store).

In 2011/12 (PDF format, 3.41MB) (on the Health and Safety Executive website), slips, trips and falls on the same level accounted for:

  • 8,929 (39.8%) of the 22,433 major injuries to employees that were reported to all enforcing authorities; and
  • 21,128 (23.8%) of the 88,731 over-three-day injuries to employees.