Even Santa can’t ignore “elf and safety” – compensation for tripping in Santa’s grotto
Posted by Jeremy Horton on 19th December 2011
For one grandmother what should have been an exciting family visit to Santa’s grotto with her grandchildren turned into a nightmare. 73 year old Mrs Dufosse from Southampton had gone with five other family members, including her grandchildren, to visit Santa’s grotto at Selfridge’s in Oxford Street London. Whilst there she tripped and fell when she stepped upon a plastic icicle, a bauble that had fallen from a Christmas tree inside the small grotto. As a result she suffered a serious fracture to her left thigh/hip which required surgery to plate and pin it. She made a personal injury claim. The grotto was run by two employees of Melbry Events Ltd, one who played Santa and the other an elf. It was the elf’s job to not only escort the visitors, but to ensure their safety and remove anything loose from the floor. Although Santa’s main job was just to “be Santa”, in the brief interval between each group of visitors he was also expected to look out from his “throne” for any hazards on the floor.
The defendant first of all tried to argue that there was no plastic icicle on the floor and that she must have tripped over her own feet. That was always going to be a rather hopeless argument to run, because one of Selfridge’s own staff had noted in the accident report having to remove the icicle from underneath Mrs Dufosse’s foot. The defendant’s main argument was that they had an excellent system for spotting hazards on the floor. They argued that despite Santa and his elf taking all reasonable care they simply had not spotted this bauble that had fallen from the tree, perhaps because it was partly hidden by a toy train. This defence succeeded before Mr Justice Sparrow at Southampton County Court. However on appeal it was rejected by the Court of Appeal, who have now allowed Mrs Dufosse to claim compensation for her serious injuries resulting from this tripping accident.
The Court of Appeal concluded that logically if the icicle was there to be fallen over, it was there to be seen. They found the icicle was not completely obscured by the toy train. They accepted that the floor safety system operated by Santa and his elf was a good one, but found that on this particular occasion they had failed to take reasonable care to implement the system. They concluded that on the balance of probabilities if Santa or his elf had taken a reasonable look for floor hazards, as they were meant to, shortly before the accident, they would have seen the icicle and removed it. Therefore they found they had breached their duty of care and were liable to pay compensation.
The Court of Appeal also considered whether Mrs Dufosse’s compensation should be reduced by reason of her own contributory negligence. They accepted that Mrs Dufosse owed a duty to take care for her own safety, but they found that on the facts of the case she had not breached it. At the time there were eight people crammed into a small space where lighting was quite dim. The accident happened when upon the request of the elf she was asked to step sideways and backwards for the camera, whereupon she trod backwards upon the previously unseen icicle. It was noted that previously on entry to the grotto her attention has been drawn to the other side where the toys were and so she would not have seen the icicle at that point. There was nothing to suggest to her that such a hazard was likely to be there. She could therefore not be reasonably criticised for failing to notice the hazard. It was not her duty to ensure that there were no tripping hazards in the grotto; that was the duty of Santa and his elf.
There has been quite a lot of critical online comment, objecting to the award of compensation against Santa, suggesting that the accident was simply down to Mrs Dufosse’s fault and that one should simply take responsibility for one’s own safety. Such criticisms we suggest rather miss the point of responsibility. Taking responsibility for one’s own actions is a two-way street. The person tripping over hazards in public places does owe a duty of care for their own safety (it was just found that on the particular facts Mrs Dufosse had not breached it), but one also owes a responsibility to take reasonable care for other people as well as oneself; to ensure that others are not injured by your actions. When you invite someone onto your property (especially where you are charging them for the privilege of doing so) as the person in control of the condition of the property you are a under duty to take reasonable care to ensure they are not injured due to the condition of your property. Again the duty is only to do what is reasonable. If it had been found for example the plastic icicle had only just fallen on the ground (without any fault by Santa or his elf) then they would not have been found responsible for the accident. In practical terms the duty of care owed by occupier to the public is not the same as the duty that the member of public owes to him/herself. As the one in control of the premises the occupier will have special knowledge about the potential hazards that there may be on the premises over and above the knowledge that a member of the public could be expected to have. The occupier is also the one that has the control and the means to take care for the safety of the public generally. They are the only ones in a position to do so. A member of the public has neither the same knowledge nor the same control as an occupier. Quite often when a tripping accident happens both the occupier and member of the public will be found to be negligent and compensation is then awarded but reduced according to the degree of contributory negligence found (typically somewhere between 10 and 50%). However, since the duties that they owe are different, there is nothing illogical about a finding that an occupier has breached its duty of care but the member of the public has not been negligent.*
*When people complain that such court decisions prove that “health and safety” has gone mad, perhaps they should consider what sort of society we would be promoting if the law were otherwise; if we only owed a duty of care to ourselves and no duty to other people. Whilst there is much that is wrong in our society would such a change really encourage a less selfish society or in fact the complete opposite? Speaking personally, I’m proud to live in a country where even Santa and his elves are held to owe a duty to take reasonable care for the safety of others.