Thursday, 26 January 2012

Is there no end to the compensation culture?

Surely the ambulance chasers have gone too far this time?  There's a depressing new judgment on bailii.

Santa and his elf

It seems that a Mrs. Dufosse, together with family members, went to see Santa in his grotto in November 2009.  (Just don't get me started on the subject of how early it is appropriate to be getting into the festive spirit!).  Anyway, Mrs. Dufosse soon found herself on her back in the grotto and in some pain.  Underneath her was an icicle.  This being in November and in a centrally heated store, Selfridges to be exact, it was, of course, an artificial icicle.  Santa's little helpers, the ones from the insurance company, denied liability, so her claim for compensation went to trial before a district judge.

At trial, the main focus was whether or not the whole accident had been faked.  The insurers claimed that there had been no icicle there at all.  Now this was curious to say the least, because there undoubtedly was a plastic icicle there by the time the Selfridges first aider arrived.  Going equipped to claim could be a new offence under the Theft Act perhaps?  Unsurprisingly, that issue was resolved against Santa - the judge was satisfied that there had been an icicle there and that Mrs. Dufosse had fallen because inadvertently she had stepped on it.

The judge found that Santa's helpers had performed a very competent risk assessment, so there was no breach of statutory duty.  Good to see that Santa is well on top of modern Health and Safety Regulations!  Santa and his attendant elf said that although the lighting in the grotto was dim, it would have been bright enough to have seen the icicle on the floor.  However, the judge at first instance found Santa and his elf to have been blameless - it was just one of those thing, an accident.  The Court of Appeal, however, thought differently.

Lord Justice Rix said, "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."  For some reason, the good Lord tends to write in long sentences with plenty of subordinate clauses.  Here's an example:
" 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."  Which being interpreted means, Santa and/or his elf should have seen the icicle before Mrs. Dufosse trod on it and fell. 

So it transpires that Santa is indeed liable in damages to Mrs. Dufosse after all.  Elf and Safety gone mad, I think!  (You knew it had to be said, didn't you?)

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