Dufosse v Melbry Events

Where a claimant is found to have fallen after standing on a hazardous object, the court must evaluate whether the object was sufficiently visible that those responsible for keeping the premises safe ought to have seen and removed it. Evidence that staff did not notice the hazard, together with an otherwise sound safety system, does not by itself justify finding no breach. The court must reconcile those matters with the established fact that the hazard caused the fall. An overly benevolent assessment of staff performance, which fails to evaluate that central factual finding, is an error of approach.

Mrs Dufosse fell while visiting a Santa’s grotto operated by Melbry Events Ltd. The trial judge found that a plastic icicle was present and caused her fall, but concluded that there was no breach of statutory duty or negligence because the operator had an effective safety system and the staff had not seen the icicle. Mrs Dufosse appealed on the ground that the judge’s conclusion that the icicle was not in plain view was inconsistent with the finding that she had stood on it. The central issue was whether that reasoning properly addressed breach of duty.

1. Appeal allowed. The Court of Appeal held that the district judge had made a fundamental error in evaluating the evidence.
2. The judge had found that the icicle was on the floor and that Mrs Dufosse had slipped on it. The icicle had therefore projected sufficiently from the train carriages to be trodden on. The proper inference, on the balance of probabilities, was that it was also there to be seen.
3. The fact that Santa and his assistant did not see the icicle did not justify the contrary conclusion. Their duties included ensuring that the grotto was free from dangerous objects. The court had to evaluate the failure to see the icicle alongside the established fact that it had caused the fall.
4. The operator’s excellent risk-assessment procedures, the absence of previous accidents and the staff’s general performance were relevant but not decisive. They could not support an overly benevolent inference that the hazard was concealed when the evidence established that it had been sufficiently exposed to cause the accident.
5. Lord Justice McFarlane agreed that the error arose because the district judge relied on the staff’s failure to see the icicle without bringing into the analysis the finding that Mrs Dufosse had stood on it. Sir Mark Potter agreed with both judgments. The formal order was: Appeal allowed.

1. Court of Appeal (Civil Division): Allowed the appeal on liability: [2011] EWCA Civ 1711.
2. Southampton County Court (District Judge Sparrow): Found that an icicle caused the fall but concluded that the operator was not in breach of statutory duty or negligence.