Dufosse v Melbry Events [2011] EWCA Civ 1711 (14 December 2011)

Neutral Citation Number: [2011] EWCA Civ 1711 Case No: B3/2011/1306 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM SOUTHAMPTON COUNTY COURT (DISTRICT JUDGE SPARROW) Royal Courts of Justice Strand, London, WC2A 2LL 14th December 2011 B e f o r e : LORD JUSTICE RIX LORD JUSTICE McFARLANE and SIR MARK POTTER ____________________ DUFOSSE - and - MELBRY EVENTS Applicant Respondent ____________________ (DAR Transcript of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 Official Shorthand Writers to the Court) ____________________ Mr J B Williams (instructed by Andrew & Andrew LLP) appeared on behalf of the Applicant. Mr S Weatley (instructed by Plexus Law) appeared on behalf of the Respondent. ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © Lord Justice Rix: On 25 November 2009 Mrs Dufosse, the claimant in these proceedings and in this court, the appellant, went with five other members of her family including two grandchildren, to visit Santa in his grotto at Selfridges in London. Selfridges had contracted the operation of Santa's grotto to the defendant company, Melbry Events Ltd, in this court, the respondent. The judge at trial, District Judge Sparrow, was able to compliment Melbry Events on the excellence of their risk assessment procedures and of their system for ensuring the safety of visitors to their grotto. That is not in doubt on this appeal. Unfortunately however, during her visit to Santa's grotto, Mrs Dufosse fell and injured her leg. The trial below was on liability. Why had Mrs Dufosse fallen, and was it anything to do with a breach of either statutory duties or negligence? Mrs Dufosse's case was that she had lost her balance by treading on a plastic icicle on the floor of the grotto. Her legs had slipped before her, we have been shown a photograph of her lying with her legs stretched out in front of her in the corner of the grotto, which I will further describe in a moment, with her back against the corner of the room, with some train carriages immediately behind her. Melbry Events' case was that she had lost her own balance and that there was no icicle at all in question. That debate was taken 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, that: "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." That is what she wrote in the box which called for an account of the incident/accident. The next day, 26 November 2009, Miss Scott gave further details which lay behind the view that she had there expressed in the form as to the nature and cause of the accident. She wrote: "I asked directly if she had fainted, as this is what I was told. She surprisedly [sic] said No. Her husband at which 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." The judge regarded Miss Scott as a particularly useful witness, as she was independent of both parties. He observed that she had nothing to gain either way by any evidence she gave in this connection. In her evidence in chief, she said: "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." There was no cross-examination other than to the effect that she had not been in the room when the accident took place and therefore could not say what Mrs Dufosse slipped on, a question with which she agreed. It was clear at any rate from her oral evidence, but in my view it was clear enough from her written statement, that the icicle was, as she stated in her statement, 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, "which I did not notice before," as she had said. It was clear from her report, as she explained in her evidence, that it was on that basis, that is to say 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 that she came to the conclusion to which she had come in her report, and which she stood by in her evidence, and upon which she was, in effect, not cross-examined. Despite that essentially contemporaneous report and witness statement from the independent first aider, Miss Scott, Melbry Events fought the case on the basis that there was no icicle there at all to be tripped over. That was their pleaded defence; that was the defence run at trial. It followed as a matter of logic, even if perhaps at trial the matter was put, I do not quite know, a little more gently, that the claim was a "try-on", to use the vernacular. There was no icicle, said the defence. Mrs Dufosse had collapsed of her own motion and the claim was without merit. Interestingly enough, Santa, as he has been described below and in submissions in this court – in fact, to give him his proper title, Mr 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, as she was described below and in this court – in fact, to give her her proper name and title, Mrs Sarah Chamberlain, said nothing about that in her witness statement, albeit she recalled it in her oral evidence. The judge rejected that evidence, albeit in the terms of saying that: "I have to discount that as being anything of any particular significance or relevance." The judge was able to find, as this particular piece of evidence no doubt gave rise to disclosure of the relevant documents, that there was very clear evidence, beyond that of Mrs Dufosse herself that she had had no such balance problems, but also clear from her medical records that there was no question of her suffering from any form of vertigo nor any proneness to falling. So in the light of Miss Scott's evidence, and the presentation to the court of the icicle in question which the family had retained and made an exhibit at trial, accompanied by some continuity evidence from their solicitor, 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. None of that 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. As I said towards the beginning of this judgment, the judge 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. Evidence was given as to the nature of the precautions taken to ensure that such a thing could not happen. Before I go into that, I must say something about the room or cabin as it has been called, in which the accident occurred. The room was square-ish, 4 metres by 3 metres. The participants entered a door in one wall and exited by another door. There was a period of about 90 seconds between the clearance of the room by one set of visitors before the entry of the next set. In the corner of the room behind the door as it opened, almost, as it were, onto his knees, 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. In the opposite corner of the room lay a build-up of toys and to the right of that build-up, 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, as they appear on the photograph, were placed as passengers. We can see in photograph 3 that there are such carriages running from the pile of toys (to the left) all the way up to the wall in which the entrance door is placed. The job of Santa's assistant, the Elf, 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 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 dark background of the dark carpet if it was there to be seen. In these circumstances, the judge had to decide the question of breach of duty against the background of his finding that the icicle was there on the floor, had caused Mrs Dufosse's fall and the question was therefore whether it ought to have been seen by Santa or the Elf in the performance of their duties. Ultimately, the judge formed the view that since the icicle had not been seen by Santa or the Elf, and since there was a good system in place, of which evidence was given by Melanie Hurley who was responsible for the operation as a whole, as well as by Santa and the Elf, 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 which I have mentioned, which is where Mrs Dufosse had fallen. Mrs Dufosse was in that corner where the train carriages were. She had moved slightly to her left for the purposes of a photograph being taken within the grotto when she fell. The judge mentioned her as bumping the wall at her back. It is not clear from the judge's description of her fall whether that bump was part of her fall backwards as her legs went beneath her, or whether it was some prior motion. The inference that I would draw from the judge's own description and from the evidence of her fall as a whole and from the sight of her in the photographs which we have, with her back against the wall and her legs thrown out in front of her, is that she bumped the wall as she lost her balance and fell. Ultimately the question is: if the icicle was there to be fallen over, was it there to be seen? 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. It is true that Santa sat for the 90 seconds or so between one lot of visitors and the other 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. 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 and I would allow the appeal. Lord Justice McFarlane: I agree and would add only this in terms of identifying where the district judge fell into error in the terms of how he structured his judgment. At paragraph 28 of his judgment, he says this: "That then leaves us with this question I have been gently hammering away at, which is: where was this item 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 8 or 9 inches wide. Santa and the Elf did not see it." The judge then in the following three paragraphs, which are the concluding paragraphs of his judgment, relies upon that last sentence, "Santa and the Elf did not see it", to found his conclusion, which was that the icicle was not in plain view and was not obvious. In his only ground of appeal, Mr Bate-Williams on behalf of Mrs Dufosse focusses in on that conclusion by the judge and says it was not supported by the evidence. The ground of appeal is: "For the Claimant to step on the icicle, it must have been within the view of the Defendants' witnesses before the Claimant's party entered the Grotto." As my Lord has very clearly described, that is the error and nowhere, once the judge has posed the question at paragraph 28, does he bring into the equation the fact – because that is the fact he had only a short time previously been 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 and the system in general, but it was an error and I too would allow the appeal for those reasons. Sir Mark Potter: I agree with both judgments. Order: Appeal allowed BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII