Christmas elf….and safety!

18 December 2011 by Rosalind English

Dufosse v Melbury Events Ltd  CA (Civ Div) (Rix LJ, McFarlane LJ, Sir Mark Potter) December 14, 2011 (extemporare judgment)

Christmas is full of hazards for the unwary and nowhere is more dangerous it seems than Santa’s grotto, even where there is no sign of a freeze and the only icicles are plastic ones…

Poor Santa. Heavily chaperoned in his gift-dispensing activities lest there be any whiff of inappropriate behaviour near children, now it seems his benevolent insistence on a wintry wonderland is under threat.  An elderly woman visited his grotto with five members of her family  at a well-known department store in London. She tripped over a plastic icicle and injured her leg, and took proceedings against the event management group responsible for running the grotto.

The two employees who ran the grotto played the role of Santa and the elf respectively. 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.  Santa was also responsible for ensuring that there was no danger, although this was a difficult requirement to fulfil as he was essentially immobile on his “throne” and had only a minute and a half between the entry of each group of visitors to look around and check for hazards. The question before the judge at first instance was whether the icicle, a Christmas bauble that had fallen from the tree, should have been seen by Santa and the elf, and removed in the performance of their duties.  The district judge’s 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.

Too many elf-and-safety duties

On appeal the question before the court 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 judge below had taken “an overly benevolent” view of the performance by Santa and the elf of their duties in the appellant’s case.

This was not the end of the matter, however. At the conclusion of the case, the court was asked to rule on contributory negligence, that is, whether the appellant had contributed to her own injury by stepping sideways and backwards in a small overcrowded room so that she could be “out of range of the camera” (presumably recording Santa communing with the two small boys in the party). The court ruled this out.  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 the appellant had moved, at the request of the elf.  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 the appellant’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 and the appeal was allowed.

Santa and his minions presumably long for the days when their duties involved mere skyborne journeys pulled by celestial reindeer and trips down chimneys that defied even the laws of quantum mechanics…

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