In November 2009, Joan Dufosse, 73 from Southampton was having her photograph taken with her two grandchildren in Santas grotto at the Selfridges store in Oxford Street, London when she trod on a stray Christmas tree icicle bauble and fell, fracturing her left thigh. She needed surgery to fit a plate and screw to her leg.  She has yet to make a full recovery.  She instructed solicitors and brought a claim for damages against Santa and his elf, namely the organisers of the grotto, Melbry Events Ltd.

The case was heard at Southampton County Court in March. She lost. The judge decided that the icicle had not been in plain view and that Santa and his elf should not have been expected to remove it. She appealed.

At the Court of Appeal yesterday before Lord Justice Rix, Lord Justice McFarlane and Sir Mark Potter, the President of the Family Division of the High Court, the judges overturned that decision.  They ruled that the ruled “offending icicle” should have been spotted, and picked up. In opening, Mrs Dufosse's barrister said: “I hesitate to trouble the Court of Appeal with a case involving Santa, an elf and Mrs Dufosse, but this is a case in which this lady suffered a very nasty injury. There was no justification for the finding that the bauble was partly hidden. Even if it was partly concealed, the defendants should have noticed it. It was not the family’s responsibility to see this icicle. They had the excitement of grandchildren going to see Father Christmas and a very pretty elf beckoning them in. It is absolutely the responsibility of the elf and Father Christmas at all times to keep the grotto clean and tidy.”

Ruling in her favour, Lord Justice Rix said: “The accident happened when Mrs Dufosse, at the request of the elf, stepped sideways and backward into the corner...It was not her duty in these circumstances to ensure there were no tripping hazards in the room which might cause something amiss. This was purely the duty of Santa and the elf.”  He dismissed Santa's claim that Mrs Dufosse was partly to blame for not spotting the icicle herself.  Whilst he praised the “excellence of the system” of safety checks that the Defendants had put in place, he concluded that human error by Santa and his elf had led to her fall, saying: “The correct inference was that, on this occasion, Santa and his elf were not as careful in taking precautions against debris on the floor as they should have been and that the district judge (at Southampton County Court ) took an overly benevolent view of the performance by Santa and his elf of their duties on this occasion.”

Santa (Melbry Events) was ordered to pay all the legal costs of the case and Mrs Dufosse is now in line for a significant award of damages, probably in the region of £30,000, at another hearing, unless the parties reach agreement.
This is a salutary lesson for all occupiers of premises who invite members of the public into their premises, offering enjoyment and leisure.  Section 2 of the Occupiers Liability Act 1957 (amended with the Occupiers Liability Act 19 84  to include the duty of care toward trespassers) provides that an occupier of premises has a "common duty of care" to all (legal) visitors. This duty is described as "a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there." 


Evidently in this case Santa and his elf failed to take such care.  They were last seen on a No:52 bus heading North.



Grant Evatt

Senior Solicitor - Personal Injury team