About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2021
>>
[2021] ZAWCHC 39
|
|
Holtzhausen v Cenprop Real Estate (Pty) Ltd and Another (A116/20) [2021] ZAWCHC 39; [2021] 2 All SA 457 (WCC); 2021 (4) SA 221 (WCC) (3 March 2021)
IN
THE HIGH COURT OF SOUTH AFRCA
[WESTERN
CAPE DIVISION, CAPE TOWN]
[REPORTABLE]
Case no: A116/20
In
the matter between:
NICOLENE
HOLTZHAUSEN
Appellant
and
CENPROP
REAL ESTATE (PTY) LTD
First
Respondent
NAHEEL
INVESTMENTS (PTY) LTD
Second
Respondent
Heard: 20 January 2021
JUDGMENT
DELIVERED (VIA EMAIL) ON 3 MARCH 2021
SHER,
J (ALLIE J et SAMELA J concurring):
1.
This
is an appeal against the judgment
[1]
and Order of this Court, whereby it dismissed a claim for damages
which the appellant instituted against the respondents after
she
slipped and fell in the Goodwood Mall on 1 June 2013. At the time of
the incident the Mall was owned by the second respondent
(‘Naheel’)
and was managed by the first respondent (‘Cenprop’).
The factual
background
2.
The Goodwood Mall is a retail shopping
complex which is located on the northern side of Voortrekker Road,
Goodwood. Its two main
entrances consist of a set of adjoining double
glass doors, which are accessed via a parking lot on the
south-western side of the
complex, which is the predominant direction
from which the winter rain comes in Cape Town.
3.
On the morning of the incident the
appellant went to the mall in order to draw money from an ATM. It was
raining at the time and
she was wearing rubber-soled, low-heeled
‘winter’ boots. She was accompanied by her daughter and
her nephew, and was
carrying her 11month old baby. She passed through
one of the main entrances and crossed over a woven so-called
‘walk-off’
entrance mat, which was located just inside
the entrance doors. There was a yellow ‘wet floor’
warning sign standing
on the tiled floor, between the two sets of
doors, and the appellant noted that the floor was wet and slippery.
4.
She proceeded to make her way slowly in the
mall, past a number of shops, towards Pick ‘n Pay. After she
had traversed about
20 paces (this was later measured as a distance
of about 14 m from the entrance) her feet suddenly gave way from
under her, and
she fell. In order to break her fall and shield her
baby she extended her right arm, and landed on it, fracturing the
right proximal
radius and neck of the elbow.
5.
The appellant testified that she fell
because the tiles were wet and slippery as a result of rain which had
been carried in via
the rain jackets, umbrellas and shoes of persons
entering the mall. After she had fallen the appellant sent her
daughter to fetch
her mother, who was employed at Pick ’n Pay
at the time. The appellant’s mother confirmed that the spot
where she found
the appellant lying on the tiles a short while later,
was very wet. With the assistance of a passer-by and a security guard
the
appellant was placed in a wheelchair and taken for medical
attention.
The pleadings
6.
In her particulars of claim the appellant
alleged that the respondents had acted wrongfully and had been
negligent in that they
knew, or ought to have known, that the
‘surface area’ of the floor was slippery when it became
wet and posed a danger
to members of the public who were required to
walk across it, but despite this they had failed:
6.1
to prevent members of the public from
accessing the area when it was wet, and/or
6.2
to ensure that the area did not become
slippery when wet, and/or
6.3
to take adequate steps to prevent the
appellant from slipping and falling, when they could and should have
done so.
7.
In their plea the respondents denied that
they had been negligent, or that they had acted in breach of any
legal duty which they
may have owed the appellant. In amplification
they averred that they had appointed competent and professional
contractors to maintain,
clean and check the premises and the
‘surface area’ of the floors at the mall, in order to
ensure that they remained
clean and would not be dangerous to members
of the public.
8.
To this end Cenprop, a professional
property management company, and a competent and independent
contractor, had been appointed
to assist in the maintenance of the
premises, including the ‘surface area’ of the floors of
the mall, and it had in
turn discharged its duties by:
8.1
appointing a professional cleaning company
JKL Cleaning Solutions CC to ‘
inter
alia
spot clean daily and any spillage
in walkways with warning signage’(sic); and
8.2
appointing a professional security
provider, Gabriel Protection Services (Pty) Ltd to call cleaning
staff, if none were available,
for spillage and litter in corridors
(sic).
The evidence
9.
In presenting their cases, both the
appellant and the respondents made use of architects, as expert
witnesses. Each of them inspected
the area where the appellant had
fallen and prepared reports which were submitted into evidence. The
respondents’ expert
also conducted a rudimentary experiment in
relation to the surface of the floors in the mall.
10.
At the time of the incident the floors of
the mall were paved with 600mm x 600mm glazed ceramic or porcelain
tiles, which were in
relatively good condition. The tiles had been
laid during the course of a refurbishment which had been carried out
during 2010
by Growthpoint Properties, who owned the mall at the
time, and were similar in appearance to tiles which had been used in
the N1
City Mall, in Parow, a short distance away.
11.
In his report the defendant’s expert
Hockly explained that in the USA and EU floor tiles are graded
inter
alia
in terms of their so-called
‘coefficient of friction’ (‘COF’) value, or
as it is more colloquially known,
their ‘resistance to slip’.
This is a mathematical term which is determined by measuring the
force required to move
an object across the surface of the tile.
Regrettably, in this country COF values are not published and floor
tiles are simply
marketed as either ‘non-slip’,
‘slip-resistant’, or ‘polished’. With this
limitation in mind
Hockly was of the view that the floor tiles which
had been selected for use in the mall could be considered as
achieving a satisfactory
balance between aesthetics and practicality.
However, he was also of the view that they could be considered as
potentially dangerous
underfoot, when they were wet. He came to this
conclusion after inspecting the tiles and conducting a wet and dry
test of their
surface, by touching them and rubbing the soles of his
shoes across them.
12.
In like vein, in a report which the
plaintiff’s expert Bester filed a year later he came to the
considered opinion that the
tiles would be ‘dangerously
slippery’ when wet. He was of the view that they could not be
considered ‘slip-resistant’
as they were very smooth and
had ‘little or no texture to touch’, and he consequently
did not consider them as suitable
for use in a shopping mall, with
its high volumes of passing traffic.
13.
Aside from their expert, the respondents
also led the evidence of the manager of the mall, Albert De Jager,
who was employed by
Growthpoint Properties at the time when it
acquired the mall and refurbished it. He testified that after the
revamp Growthpoint
sold the mall to Cenprop, and it had in turn sold
it to the St Tropez Property Group, which had then on-sold it to
Naheel, which
he described as a ‘division’ of St Tropez.
Throughout these transfers of ownership De Jager was retained as the
manager
of the mall, and he continued to occupy this position as an
employee of Cenprop up to the time of the incident.
14.
In their plea the respondents pointed out
that Cenprop had been appointed to manage the mall in terms of a
‘management agreement’
which was set out in a letter
dated 8 November 2011. It contained a proposal by Cenprop to manage
Naheel’s properties on
a ‘daily’ basis, and offered
a range of ‘management services’, including physically
inspecting the properties
on a regular basis and maintaining the
buildings and grounds which were situated thereon, in good condition.
For the rest, the
proposal offered the collection of monthly rentals,
the renewal of tenant leases, and the sourcing of new tenants, on a
part fee
part commission basis.
15.
On his arrival at the mall in 2010 De Jager
found a cleaning service JKL Cleaning Solutions CC (‘JKL’)
in place, which
was operating in terms of an oral agreement it had
with the mall’s former owners. When asked, in evidence in
chief, to explain
what the nature of this agreement was he said it
was ‘very difficult to say...essentially they had to keep the
malls clean’.
At some stage a contract of sorts was drawn up
between JKL and the new owners, but it was never signed by the
parties.
During cross-examination he described the status of this
contract as ‘just a good faith agreement…it wasn’t
a contractual thing at all’ (sic).
16.
JKL had a total of 5 cleaners in their
employ who worked in 2 shifts between 06h00 and 19h00 each working
day: 3 in the morning
and 2 in the afternoon. They cleaned the
corridors and the public toilets in the mall. According to De Jager,
when they were busy
mopping or cleaning floors they would put up
so-called ‘wet floor’ signs ie boards warning passersby
that the area
was wet, and they also did so when it was raining. The
wording of these boards was never canvassed in evidence.
17.
That then was the sum total of the evidence
which was tendered in relation to JKL’s cleaning duties, and
its cleaning regime,
such as it was. In this regard I may mention
that the only reference in the record to any written instruction as
to the work which
JKL was required to perform is that which is set
out in Annexure B to the unsigned contract, where it is recorded that
it was required
to sweep and mop the tiled floors and, as was stated
in the respondents’ plea, to ‘spot clean daily any
spillage in
walkways with warning signage’(sic).
18.
On the day of the incident a security
company, Gabriel Protection Services (Pty) Ltd, commenced duties at
the mall. It too had a
contract of sorts with Cenprop, which was only
signed by its director, but not by Cenprop. In terms of its Standard
Operating Procedure
its security guards were required to call
cleaning staff if ‘none were available’ (sic), for
‘spillage’
and litter that was found in corridors.
19.
Lastly, it may be mentioned that De Jager
testified that aside from a daily morning inspection of the mall and
the public toilets,
he would regularly walk through the mall and if
he noticed anything that needed to be ‘cleaned up’ he
would notify
the cleaning service. He did not testify as to having
conducted any inspection of the mall on the morning of the incident
and offered
no evidence as to the condition of the floors at that
time, nor did he give evidence about any instruction that he gave to
the
cleaners that morning in relation to the floors and he was not on
the scene of the incident when it happened, nor did he attend
on the
appellant whilst she was waiting for assistance after she had fallen.
He only became aware of the incident later in the
day, after it was
reported to him by the owner of the security company, Jacques
Wolhuter.
20.
It is common cause that at the time when
the appellant fell and until she left the mall to get medical
attention, no cleaners were
in attendance in the corridor where the
incident occurred i.e. between the entrance doors and the spot where
she fell. Even when
Wolhuter arrived on the scene sometime after the
appellant had already left, he saw no cleaners. According to him the
floor was
dry by that time and a ‘wet floor’ warning sign
had been placed at the spot where the appellant had fallen.
The law
21.
Before considering the judgment of the
Court a
quo
,
it is necessary to discuss the legal principles which have evolved
and which are applicable in matters such as these.
22.
In
the first place, it is by now long established in our law that the
owner or other person or entity in control of a shopping mall
has a
legal duty to take reasonable steps to ensure that its premises are
‘reasonably safe’ for those members of the
public who
might frequent them.
[2]
What
such steps may be will depend on the circumstances.
23.
A
failure to take such steps will constitute wrongful conduct, but that
in itself will not suffice to impose delictual liability
without the
necessary fault element i.e.
culpa.
Whether
that is present is determined by conducting the enquiry postulated by
Holmes JA in
Kruger
v Coetzee
[3]
viz asking whether a reasonable man in the position of the owner or
other person in control of the premises would 1) have foreseen
the
risk of danger or harm occurring were such steps not taken and 2)
would have taken such steps; and the defendant failed to
take them.
The answer, in each particular case, to the questions which are to be
posed in terms of
Kruger
depends in turn on the circumstances pertaining to the risk of danger
or harm occurring, including the nature and possible extent
thereof,
the context in which it might occur, and the degree of expertise and
the means available to the owner or person in control
of the
premises, to avert it.
[4]
24.
Thus, in summary, the owner or person or
entity in control of a mall will only potentially be liable for harm
or danger which would
have been foreseeable to the hypothetical
reasonable man in its position, and is obliged to take no more than
reasonable steps
to guard against such harm occurring.
25.
Whether
the steps that were taken in a particular case are to be regarded as
reasonable or not depends upon a consideration of all
the facts and
circumstances, and merely because harm which was foreseeable did
eventuate does not mean that the steps which were
taken to avoid it
were necessarily unreasonable. Ultimately the inquiry involves a
value judgement on the part of the Court.
[5]
26.
As
an obvious incident of the duty to take reasonable steps to ensure
that a shopping mall is reasonably safe, it is by now also
well
established in our law that the owner or other person or entity in
control of it is required to take reasonable steps to ensure
that its
floors are reasonably safe.
[6]
27.
It
commonly happens that floors in shopping malls are rendered unsafe
because something lands on them which makes them slippery
and
dangerous and the law reports are replete with cases of this nature,
which are referred to as so-called ‘spillage’
cases,
because they usually involve a liquid or fluid being spilt onto the
floor.
[7]
28.
It
has been held that a reasonable person in control of a shopping mall
would clearly foresee that spillages might occur in its
passages and
might cause harm if they were permitted to remain, and would
therefore take reasonable steps to guard against such
harm
eventuating as a result thereof.
[8]
If, as was held in
Avonmore
Supermarket
[9]
it is reasonably foreseeable that a person may slip and fall as a
result of a damp floor, all the more so if the floor is wet.
29.
In
Probst
,
the
locus
classicus
of spillage cases, Stegmann J held
[10]
that the duty which rests on a shopkeeper to take reasonable steps to
ensure that the floors of its premises are reasonably safe
for
customers is not so onerous as to require it to discover and clean up
every spillage, as and when it occurs. All that is required
is that
the shopkeeper has a system in place which will ensure that spillages
are not allowed to create potential hazards for any
‘material’
length of time, and which will allow for them to be discovered and
for the floor to made safe, with ‘reasonable
promptitude’.
30.
In the light of this test, spillage cases
are all about the nature and extent of the cleaning system and regime
which was in place
at the time when, and at the place where, the
plaintiff slipped and fell; and the evidence which is led in this
regard is directed
at dealing with the issue of whether or not the
measures which were in place to deal with spillages, were reasonable.
31.
Invariably, the owner or other person or
entity in control of a shopping mall, or a shop such as a supermarket
within a mall, will
contract a cleaning service that will be expected
to attend to keeping the floors clean and to removing any spillages
which may
occur, and will not personally attend to this, for obvious
reasons. Frequently such a cleaning service is an independent
contractor
and not an employee of the owner or person in control of
the mall, or shop. In many instances the owner will simply contract
an
entity to manage the mall or shop, and will leave it to such
entity, as part of the discharge of its obligation to manage and
maintain
the premises, to contract an outside cleaning service to
attend to the cleaning of the mall or shop, as the case may be,
including
any spillages which may occur.
32.
In
situations where the owner has contracted out its responsibility of
keeping the floors of its premises clean, to an independent
contractor, both in respect of any dirt which may accumulate
naturally and in respect of spillages which may occur, the question
which arises is whether by doing so it is entitled to avoid liability
in respect of any claims which may arise, as a result of
a failure on
the part of the contractor to discharge its obligations. In this
regard, as early as 1931 the Appellate Division confirmed
in
Colonial
Mutual Life Assurance Society Ltd
[11]
that whereas in our law a principal is liable for the acts of an
agent, who is its servant, it is generally not liable for the
acts of
an agent who is an (independent) contractor or sub-contractor, nor
for any acts performed by the servants of any such contractor.
33.
However,
notwithstanding this decision, and as a result of the influence of
English law and its treatment of certain so-called ‘duty
of
care’ cases (a concept in English law which conflates
wrongfulness and negligence
[12]
),
pursuant to the decision of the Appellate Division 6 years later in
Dukes
v Marthinusen,
[13]
in a number of instances, including
Probst,
[14]
our Courts held that liability did attach to a principal, even where
it had contracted an independent 3
rd
party to perform work or to discharge duties, on its behalf. Thus, in
Probst
the owners of a supermarket were held liable for the deficiencies of
a cleaning system which had been implemented by an independent,
outside cleaning service they had contracted, and which deficiencies
had resulted in the plaintiff slipping and falling on cooking
oil
which had been spilt.
34.
A
useful discussion of some of these cases can be found in the minority
and majority judgments in
Chartaprops
.
[15]
For the purposes of what follows, it is only necessary to refer to
the more important of these decisions.
35.
In
Dukes
the plaintiff’s husband was killed when a wall of a cottage
which was in the process of being demolished fell onto him as
he was
passing by, as a result of heavy materials which had been stacked
against it by the demolition contractor’s employees.
Stratford
ACJ considered a number of English cases which had been decided in
the late 1800s, which variously held that whereas
an employer could
delegate work to a contractor which might involve a risk of harm to
third parties it could not delegate its responsibility
for the
consequences thereof. Thus, where persons were injured as a result of
such work which had been improperly performed, the
employer remained
liable for any claims which might arise therefrom. After reviewing SA
cases on this issue and the decision in
Colonial
Mutual,
the Acting Chief Justice concluded
[16]
that our law on this aspect was in accordance with English law. Thus,
where there was a duty on an employer to take precautions
to protect
members of the public, which was the case in matters involving work
which was dangerous i.e. which posed a risk of injury
or harm to
third parties, such duty could not be delegated, and the employment
of an independent contractor to perform the work
was
‘irrelevant’.
[17]
In such instances the employer was under a duty to ensure that the
necessary precautions were taken by the contractor he had appointed,
and if they were not, he would be liable for the contractor’s
default.
36.
Some
30 years later this Court had occasion to consider the ambit of the
decision in
Dukes
,
in
Rhodes
Fruit Farms Ltd v Cape Town City Council,
[18]
a matter which concerned an objection by a plaintiff to an
application by the defendant for leave to amend its plea. The basis
of the plaintiff’s objection was that if the amendment were
allowed it would render the plea excipiable. The defendant sought,
by
way of its proposed amendment, to contend that the work which had
given rise to the claim was of a specialized nature and had
been
performed by an independent contractor and that it was accordingly
not liable for the consequences thereof. The plaintiff
contended that
on the basis of the decision in
Dukes
the duty to take reasonable precautions fell on the defendant and
could not be delegated by it to an independent contractor, and
it
consequently remained liable for the acts of the contractor.
37.
The plaintiff had sought to claim
compensation from the Cape Town municipality after its properties had
been damaged by flooding,
when the sluice gates of a dam were opened.
It contended the damage had occurred because the flow of the water
was excessive as
a result of a defect in the construction. The
municipality sought to plead that it had appointed an independent
board of engineers
to design the dam, which had been built by
municipal workers under the supervision of, and according to the
design specifications
which were laid down by, the engineers.
38.
Van
Wyk J held that
Dukes
did not support the proposition that the employment of a skilled
independent contractor to perform work could never absolve an
employer from liability in respect of the consequences thereof, and
no such principle existed in terms of Roman-Dutch law. This
was
particularly the case where the extent of any danger which might
attend on the performance of the work and the ‘reasonably
practicable’ measures which were to be taken to minimize it,
could only be determined by a skilled and independent contractor.
[19]
Consequently, there might well be instances where an employer could
rely entirely on an independent contractor to take all reasonable
precautions to avoid harm to another, and would not be held to have
been negligent where the contractor had failed to do so.
[20]
39.
In
the circumstances, Van Wyk J was of the view that the decision in
Dukes
‘laid down no more’ than that if work which was entrusted
to an independent contractor was of such a nature that danger
would
ensue unless it was done with the necessary precautions being taken,
the employer would be liable for any failure on the
part of the
contractor, to take such precautions.
[21]
40.
The
issue of the liability of an employer for the acts of an independent
contractor came up for reconsideration by the Appellate
Division in
1991, in
Langley
Fox.
[22]
The plaintiff had been injured when she had walked into a wooden beam
which was suspended on trestles across a sidewalk, by a subcontractor
who was commissioned to install a ceiling under an overhead canopy.
41.
Goldstone AJA for the full court,
reaffirmed that the general principle in our law, as per the decision
in
Colonial Mutual
,
is that an employer is ordinarily not responsible for the negligence
or wrongdoing of an independent contractor which he has employed,
and
although this was also the position in English law, for over a
century its courts had recognized exceptions to it, in instances
where the employer was said to be under a ‘non-delegable’
duty of care. It appears, from the discussion of these English
cases
in
Langley Fox
and
Chartaprops
,
that they involved instances where ‘dangerous things’ or
a ‘special’ risk of harm or danger to the public
was
present, or where the nature of the relationship between the
plaintiff and the employer was such that there was a ‘special
vulnerability’ present – such as in teacher-pupil and
hospital-patient settings.
42.
After
a careful and exhaustive analysis of the ratio of the decision in
Dukes,
Goldstone
AJA concluded that the effect of the principle which it had laid down
was to impose a form of vicarious liability
on the employer of an
independent contractor, which was ‘unknown in our law of
delict’
[23]
(as had
previously been pointed out by Van Wyk J in
Rhodes
Fruit Farms
).
43.
In
his view, the proper approach to the question of the liability of an
employer for the negligence of an independent contractor
was to apply
the basic principles of Aquilian liability in our law, which require
an employer to exercise that degree of care which
the circumstances
demand in each instance.
[24]
44.
Thus,
whether an employer will have a legal duty in respect of the
obligations of a contractor will ultimately depend on whether
a
diligens
paterfamilias
in his position would foresee the likelihood of danger or harm
occurring in respect of the work to be carried out by the contractor
and would take steps to guard against it.
[25]
As previously pointed out, this will in turn depend on the nature of
the danger or harm and the context in which it might arise,
the
degree of skill and expertise available to the employer and the
contractor, and the means available to the employer to avert
the
danger or harm.
[26]
45.
Applying
this test to the facts before it the Appeal Court held
[27]
that whatever the arrangement between the employer and the
sub-contractor was (and the question of whether precautions had to be
taken as between them was a matter which depended upon the terms of
their contract), as far as members of the public were concerned
the
employer (who was a building contractor) had been under a duty to
take precautions to ensure that the erection of the canopy
and
ceiling for it, was effected safely, and it had failed to discharge
this duty by ensuring that the area where the obstruction
was to be
erected, was cordoned off. Thus, in
Langley
Fox
the employer could not avoid liability by contending that it had left
the work which was to be performed, to a competent and skilled
sub-contractor, and that the sub-contractor should be held liable for
the damages which had been sustained by the plaintiff.
46.
The
issue of a mall owner’s liability for the actions of an
independent cleaning contractor pertinently came up for consideration
by the Supreme Court of Appeal in
Chartaprops
.
[28]
47.
The plaintiff had slipped on unknown
spillage which had been lying on the floor of a mall for more than 30
minutes, and had injured
herself. The court a
quo
held that the owner (Chartaprops), who was in control of the mall,
and the independent cleaning contractors it had employed to
keep the
mall clean, were liable jointly and severally for the damages which
the plaintiff had sustained.
48.
The cleaning contractors were held liable
on the basis of the test set out in
Probst
because their cleaning regime was inadequate, as it failed to allow
them to detect and remove spillages within a reasonable period
of
time. The owner was held to be vicariously liable for the failures of
the cleaners. It appears that the court arrived at this
finding on
the basis of the principle which was laid down in
Dukes
i.e. that the owner-employer’s ‘duty of care’
towards customers was a non-delegable duty ie one which could not
be
transferred to the cleaners.
49.
On
appeal the Supreme Court of Appeal reversed the decision that the
owner was liable. It held
[29]
by a majority of 4-1, that the body of law which had built up around
the adoption of the so-called ‘non-delegable duty of
care’
principle in cases in England and Australia, had rightly been
criticized by a number of judges and prominent scholars
[30]
as arbitrary and in certain instances even irrational; and had
resulted in continuing uncertainty as to the state of the law, as
it
was subject to the random whim of individual judges who had rendered
conflicting decisions.
50.
Ponnan
JA held
[31]
that the concept
of liability on the basis of a ‘non-delegable’ personal
duty substituted a duty to take reasonable
care with a more
‘stringent’ duty to ensure that reasonable care was taken
by another, and deviated from the generally
accepted principle that a
person should not be held liable for the acts of another, unless he
was himself at fault.
[32]
The
application of the concept could result in a blameless employer being
held liable for the fault i.e. negligence of an independent
contractor, contrary to the principle which was set out in
Colonial
Mutual
and
accordingly constituted a form of strict liability, or at least a
‘disguised’ and legally indefensible form of vicarious
liability, which was repugnant to our law.
51.
Ponnan
JA consequently was of the view that the response of our law to the
question of whether an employer should be held liable
for the acts of
a contractor should be determined on an application of the principles
which were set out in
Langley
Fox
[33]
i.e. that the employer is
required only to exercise that standard of care which the
circumstances demand. Thus, where there is
a situation involving an
abnormally high risk or ‘especial vulnerabilities’ our
law would expect greater vigilance
on the part of the defendant i.e.
a ‘higher’ standard of care, in order to prevent
foreseeable harm from materializing,
[34]
and
vice
versa
where the risk of harm or danger is low.
52.
In
Chartaprops
the owner had contracted the duty of keeping the mall’s floors
clean and thereby safe, to a competent cleaning contractor,
which had
set up an apparently satisfactory cleaning regime. The owner had
monitored the contractor’s compliance with its
cleaning duties
by regularly consulting the contractor’s cleaning supervisor
and inspecting the floors, and had no means
of knowing that the
cleaning system which had been implemented was deficiently executed
on the day of the incident. In the circumstances
it was clearly
blameless in regard to the incident and had discharged its duty to
take reasonable steps to ensure that the floors
of the mall were
safe. The SCA held that inasmuch as the incident had been caused
solely by the negligence of the independent cleaning
contractor, it
alone was to be held responsible for the damages which had been
sustained by the plaintiff.
The judgment a
quo
53.
The
court a
quo
was of the view that the question which it was required to answer was
whether, in circumstances where the floor tiles had a propensity
for
being slippery when they were wet, it could be said that either
Cenprop or Naheel had been negligent in relation to the presence
of
water on the tiles at the spot where the plaintiff fell.
[35]
It correctly pointed out that the fact that the tiles became slippery
when they were wet was something which appeared to be known
to both
the defendant parties.
54.
Consequently,
it was of the view that the matter involved the situation which had
been described in
Probst,
in
that a potentially dangerous situation had occurred because of
inclement weather conditions outside the mall which had led to
shoppers transporting quantities of water into it, as a result of
which the floor tiles had become slippery. In the circumstances
Naheel was required to ensure that the cleaning contractors (JKL) put
a system in place which would ‘minimize the risk’
which
such ‘residual’ water might pose to shoppers.
[36]
55.
The
court went on to discuss what it considered to be the legal
principles which were applicable, with reference to the decisions
in
Probst
and
Avonmore
Supermarket,
as
well as in
Chartaprops
,
which it considered to be on all fours with the matter which was
before it.
[37]
56.
It
came to the conclusion that Naheel was exempt from liability because
it had appointed a duly qualified management company to
attend to the
‘daily running’ and maintenance of the mall.
[38]
It arrived at a similar conclusion in respect of Cenprop, as it had
appointed a competent cleaning contractor to keep the premises
clean
and free of spillages and De Jager inspected the mall on a
regular basis, and in terms of the agreement which Cenprop
had with
Gabriel Protection Services its security guards were required to be
on the lookout for ‘potential harm’ and
to call the
cleaners if they were needed. In the circumstances, Cenprop had
accordingly done all that it could reasonably be expected
to do.
57.
On
the other hand, the court was of the view that as JKL was the party
which was ‘directly’ responsible for cleaning
the floors
of the mall and had put up ‘wet floor’ signs that day,
well knowing that it was raining and that water was
likely to be
transported into the mall, it bore the ‘ultimate
responsibility’ i.e. the duty to ensure that it was ‘safe
for the plaintiff to venture into the mall with her children’
.
[39]
And as it had not been
cited as a defendant, the action had to fail.
An assessment
58.
In my view, the court a
quo
erred in a number of fundamental and material respects. In the first
place, it erred in holding that the legal duty to take reasonable
steps to safeguard the plaintiff from harm that day, ultimately fell
on JKL. That duty was one which fell primarily and squarely
on Naheel
as owner of the mall, and in the second place on Cenprop, the
management company which it had contracted to manage the
mall on its
behalf, and not on JKL as an independent contractor who was only
responsible for cleaning the mall, and that much is
abundantly clear
from the decisions I have referred to in the discussion which
precedes this.
59.
It
would be a startling state of affairs if independent cleaning
contractors in shopping malls who are only contracted to keep floors
clean became saddled with a duty to safeguard those who frequent the
mall premises, and became liable to them on this basis in
the event
that they failed to comply with their contractual cleaning duties. As
I understand it, none of the cases I have referred
to have gone so
far as to suggest that such a duty should lie on such contractors
[40]
and the basis on which they are commonly held liable is that they
have failed to have an adequate cleaning system in place, which
would
enable them to detect and remove spillages within a reasonable period
of time, and that is the extent of their legal duty
to those who use
the floors they are required to keep clean. Obviously, if they comply
with their contractual obligations to keep
floors clean and free of
spillages, this will result in the floors being safe for use by
persons who walk across them, and if they
don’t, the floors, or
at least a particular section of the floors, may become unsafe.
60.
But
the duty to take reasonable steps to safeguard visitors to a mall and
the floors in it from the risk of danger or harm, falls
on the owner
and any person or entity who/which may be in control of the premises,
and not on cleaning contractors, at least not
those who are
independent. The situation may well be different in respect of
in-house cleaners, who are employed by the owner or
entity in control
of a mall. In such instances the owner or entity in control, as the
case may be, may be liable vicariously for
their actions or
omissions
[41]
because as
employees they are subject to the duty which rests upon their
employer to guard against the risk of harm or danger to
customers.
61.
In any event, in terms of the agreement
which it had with Cenprop, JKL was not required to dry floors when
they became wet. It was
only required to keep them clean and free of
‘spillages’. By this I understand that its cleaners had,
at most, a duty
to clean up the odd and accidental spillage of fluid
or liquid that might occur from time to time at a specific spot on
the floors.
They were not responsible for any defect which might lie
in the make-up or composition of the floors, which might render them
inherently
unsafe or dangerous when it rained.
62.
In my view the rain water which was brought
into the mall by those who entered it that morning could hardly be
said to constitute
a ‘spillage’. As I see it,
spillage cases deal with instances where a floor which would in the
ordinary course
of normal everyday use be safe, becomes unsafe when
something is accidentally spilt onto it. Such cases must be
distinguished from
instances such as this one where floors are
inherently unsafe or dangerous because of their condition or their
composition, for
example wooden floors that become infected with wood
borer beetle, or which rot because of the ingress of water, or floors
which
collapse because they were not properly designed or erected, or
because the materials from which they were constructed are
inappropriate
or not strong enough to carry the load they are
intended to carry.
63.
The problem with the floor on which the
plaintiff slipped and fell was that it was laid over with tiles which
were dangerous in
certain conditions i.e. when they became wet. As
such the tiles constituted a hazard when they were wet, but this did
not make
the incident which occurred a ‘spillage’ case.
64.
In my view the court a
quo
therefore erred fundamentally in its characterization of the matter
as one involving what might, for the sake of convenience, be
referred
to as a ‘cleaning’ issue, rather than one involving a
hazardous situation. As a result of this, it wrongly
treated the
matter as if it was a spillage case, and wrongly applied to it the
principles which are applicable in such cases, as
set out in
Probst
and
Chartaprops,
and wrongly framed the question of
whether the respondents had been negligent, as an enquiry into
whether they had been negligent
‘in relation to the presence of
water’ on the tiles at the spot where the plaintiff fell. That
would be the question
which one would ask of the cleaners in a
spillage case, but it is not the question which one asks of the owner
and management company
in control of a shopping mall, where tiles
that may be dangerous in certain conditions, have been laid.
65.
It
will have been noted from what is set out above in relation to the
pleadings
[42]
that the
appellant made no allegations in her particulars of claim that the
defendants were negligent in any way or form, because
of any
deficiencies or failures in relation to the
cleaning
system
which was in place in the mall. This was because she did not consider
this to be a spillage matter.
66.
At the outset of proceedings plaintiff’s
counsel pointed out that the matter was not one analogous to that
which one finds
in so-called spillage cases. As he put it:
‘
M’Lord,
the issue in this case is that the situation was not a situation of a
spillage. It’s a-the floor is wet because
it’s raining,
and with the greatest will in the world, cleaners would not be able
to walk behind every person and make sure
that the floor is dry…Every
person who walks in, brings water with them. So, it’s a
dangerous situation, and that
is why
we say
that this case is different
to where you
can absolve yourself from liability
.”
And a bit further on in
his address he again made his position clear:
‘
M’Lord,
this certainly isn’t a question of spot-cleaning. This is a
question of the floor which is wet because of the
inclement weather
and people are invited to enter these premises, you know, do their
shopping, and we say both architects admit
that when this floor is
wet, it is potentially dangerous…. M’Lord our case then
is, because of the nature of the tiles,
the defendants couldn’t
absolve themselves by getting cleaners.’
[43]
67.
The plaintiff’s counsel’s
submissions were confirmed by Bester, in his evidence. He explained
that the floor tiles were
‘too smooth’ and in order to
keep them safe one would have to take extraordinary care with their
maintenance and cleaning:
‘
And
the point I make there, with a bit of understatement, I would say, is
in wet weather this would pose a challenge on an ongoing
basis. I do
not know how one would keep a floor dry when you’ve got public
traffic into a building from wet conditions on
a constant basis. You
would have to have somebody cleaning almost behind every person. It
wouldn’t be….
Mr
McClarty
: Behind or in front?
Mr
Bester
: Perhaps both.’
In his view it would
accordingly be almost impossible to keep the tiles ‘sufficiently
dry’ so as not to be dangerous
in wet weather, by using
cleaners.
68.
Once again, Bester explained this in his
evidence as follows:
‘
And
bear in mind, Sir, again, that we’re not talking about an
accident, the spillage of fruit juice; we’re talking about
where rain is being trafficked into the building on a constant basis
in the way this mall-this mall, this access corridor is exposed
to
rainwater in a way that buildings are not always (sic) and in those
contexts, that would be a fair enough tile. But in this
case, you
have a constant traffic, when it is raining, of water into the
building, and that makes it dangerous. ‘
69.
In the circumstances this was not a matter
where the adequacy of JKL’s cleaning system was in issue, as
the plaintiff’s
fall was not occasioned by a failure on the
part of the cleaners to detect the water on the tiles and to remove
it with ‘reasonable
promptitude’, as is the case in
spillage matters. Put simply, and using the language which was
adopted in
Chartaprops
one cannot fairly blame the cleaners for what happened. The fault, if
any, can only lie with the owner and the managers of the
mall.
70.
If one goes back to first principles, the
following emerges. In the first place, it is trite that Naheel as
owner, and Cenprop as
the manager of the mall, had a legal duty to
take reasonable steps to ensure that the mall, and the floors in it,
were reasonably
safe for those who entered the mall.
71.
De Jager was aware of two previous
incidents when visitors to the mall had slipped and fallen. In one
incident a shopper had slipped
and fallen on juice that was lying on
the floor in Pick ‘n Pay, in the other a child had fallen on an
ice-cream which he
had dropped. It was never suggested by De Jager in
his evidence that these were spillage cases, in the sense that the
victims had
slipped and fallen because of spillages which had not
been detected and removed with reasonable promptitude. In fact, the
impression
I get from his evidence, at least insofar as the ice cream
incident is concerned is that the slip and fall occurred
spontaneously
when the ice cream fell. Thus, from these incidents it
would have been clear to any reasonably experienced mall manager that
the
tiles were slippery and dangerous when they were wet, and not
that there was a problem with the cleaning of the mall.
72.
That De Jager must have been aware of the
dangerous nature of the floor tiles when they were wet is evident
from the remarks which
he made to the plaintiff’s mother when
he approached her in Pick ‘n Pay some two days after the
incident. In this regard,
she testified that he told her that when it
rained he wasn’t able to put up ‘wet floor’ signs
‘everywhere’
and he could not clean ‘everywhere’.
At the very least, in the context of the known and common cause
facts, this statement
must be understood as an appreciation on his
part that when it rained there was a ‘global’ risk of
danger in the wet
areas i.e. the corridors leading off from the
entrance doors which faced directly in the direction from which the
rain usually
comes in winter i.e. the south-west, and that it would
be difficult to safeguard persons who were using those corridors from
the
risk of slipping and falling. In the circumstances he clearly
knew that it would not be possible for the cleaners to keep the
entire
floor areas in that section dry, when there was a constant
traffic of wet people entering through the entrance doors to those
areas.
73.
If one then turns to the ‘negligence’
enquiry which must be conducted in terms of
Kruger
v Coetzee
, in my view in such
circumstances the reasonable, hypothetical owner and manager of a
mall, would clearly have foreseen the risk
of danger or harm
occurring i.e. persons slipping and falling in those areas of the
mall, and would have taken steps to prevent
this from happening. In
this case neither of the defendants took any such steps. They didn’t
even try to ensure that, at
the very least, the risk of a slip and
fall was ‘minimized’, by contracting JKL to employ a
sufficient cohort of cleaners
to dry those sections of the floors
that became wet when it rained, at the entrances on the
south/south-western side of the mall.
74.
Bester pointed out that the 1.8m wide woven
polypropylene ‘walk-off’ entrance mat which was intended
to trap dirt and
fluids from being carried into the mall, would only
serve its purpose in respect of what was being carried in on the feet
of those
who were entering the mall. In his view, even for this
purpose the mat was inadequate, as it was too narrow ‘by normal
standards’.
In this regard he pointed out that a tall person’s
stride would be such that they were likely to only tread once on the
mat,
with one of their feet. Furthermore, from his inspection he
noted that the mat was old and ‘shaggy’ and worn out in
places, and it had been seated in a very shallow well. In the
circumstances it was not fit for purpose. In fact, it was evident
from a photograph which the appellant handed in that when it rained
the mat became water-logged and served as an added source of
water
which could be carried into the mall, by those who stepped on it, or
wiped their feet on it. Once again, in this respect
the respondents
were negligent, and failed to take steps that one would have expected
them to take. In this regard a competent
management company would
have inspected the mat regularly and would have noted that it was
itself a potential source of danger
for anyone who stepped on it and
proceeded to walk on the tiles when it was raining, and would have
replaced it with a new and
wider/longer mat, when it was no longer
able to serve its intended purpose.
75.
Bester testified that the most obvious
solution to the problem for the respondents was to acquire roll-out
polypropylene ‘runner’
mats with rubber edges, such as
the small one which had been placed on the inside of the entrance
doors, which could be rolled
out an appropriate distance along the
corridors, from the entrances on the south/south-western side. These
would then serve to
soak up any excess water that was carried into
the mall, not only on the feet of passersby, but also on their
clothes and umbrellas.
76.
Finally, the most obvious solution
available to the respondents was to close those particular entrances
at times when they were
subject to rain from the south/southwest to
such an extent that rain water was being carried in to the mall, and
to divert shoppers
to other entrances. From the evidence and the
lay-out plan of the mall it appears that there were other entrances
nearby which
could easily have been used, at minimal inconvenience to
shoppers.
77.
It was not suggested by the respondents
that these solutions were impossible to adopt, either for logistical
or for economic reasons.
Had either of these steps been taken the
incident would most likely not have happened. In the circumstances,
in my view both of
the respondents were negligent, as alleged in
terms of paragraphs 6.3 and 6.1 above.
78.
The respondents pleaded that in the event
that Naheel was held to have been negligent it was excused from
liability by virtue of
a disclaimer notice which had been prominently
displayed at all of the entrances to the mall, including the one at
which the appellant
had entered. It stipulated that anyone entering
the premises did so ‘entirely’ at their own risk, and the
owner would
not be liable for any injury to their person which had
been caused by the negligence (ordinary or gross), of the owner or
any of
its employees, agents or contractors. The appellant denied
having seen such a notice, either on the day of the incident or on
any
other occasion.
79.
It
is trite that in order to rely on such a disclaimer, which the
respondents contended contained the basis of an agreement
whereby the appellant entered the mall, they were required to prove
not only that such a notice was displayed at the time, but
also that
the appellant had read and accepted the terms thereof (and there was
therefore actual consensus as to the basis upon
which she entered the
premises), or at the very least that they had taken ‘reasonably
sufficient’ steps to ensure that
the notice would come to her
attention in the ordinary course (in which event she would be liable
on the basis of quasi-mutual
assent i.e. by her conduct she would be
taken to have assented to the terms thereof).
[44]
Whether the respondents took such steps is an objective enquiry,
which is determined by an assessment of the particular circumstances,
including the size, location and nature of the display of such a
notice.
[45]
80.
In
Durban’s
Water Wonderland
[46]
a disclaimer notice was prominently displayed on either side of a
ticket booth, where visitors to an amusement park purchased their
tickets in order to enter it. The court held that any reasonable
person who approached the booth would hardly have failed to see
the
notice, which was in large, bold lettering with white-framed borders,
on either side of the cashier’s window, in a place
where any
reasonable person would ordinarily expect to find notices which set
out the terms which would govern their use of the
amusement park.
[47]
In the circumstances it held that sufficient steps had been taken to
bring the disclaimer to the attention of the plaintiff, and
she was
held to have assented to the terms thereof.
81.
In
this matter it appears that if there was a disclaimer notice at the
entrance through which the appellant entered, it would have
been
obscured by a sign board and rolls of material on a stall which had
been set out at the entrance, outside a hardware shop.
[48]
In my view, in such circumstances no reasonable visitor to the mall
could have been expected to have seen the notice, if it was
there at
the time. In this regard De Jager testified that whenever ownership
of the mall changed hands the disclaimer notices would
be taken down
and the wording on them would be altered (presumably by sign writers)
to reflect the change of owner. Such a process
would take some time.
82.
The respondents produced a photograph of
the specimen notice which according to them was up at the time, at
all the entrances. However,
it reflects the owner as the St Tropez
Property Group (Pty) Ltd, which, as is evident from De Jager’s
evidence, was the previous
owner, and not the owner at the time when
the incident occurred i.e. Naheel. In the circumstances, if there was
a notice up at
the time of the incident it could not serve to
indemnify Naheel from liability. And as is evident from the terms of
the notice
it only purported to indemnify the owner of the mall and
not Cenprop.
Conclusion
83.
In the result, I would accordingly uphold
the appeal and make the following Order:
83.1
The appeal is upheld with costs.
83.2
The Order of the court a
quo
is set aside and replaced with an Order as follows:
‘
The
defendants shall be liable jointly and severally (the one paying the
other to be absolved), for:
1.
Such damages as the plaintiff may
prove, or as may be agreed, she suffered as a result of an incident
which occurred on 1 June 2013,
when she sustained injuries after
slipping and falling in the Goodwood Mall; and
2.
Costs of suit, including the qualifying
fees and expenses and the costs of attendance at court of Mr Michael
Bester (architect)
.’
M
SHER
Judge
of the High Court
I
agree, and it is so ordered.
R
ALLIE
Judge
of the High Court
I
agree.
M
SAMELA
Judge
of the High Court
[1]
R
eported
sub
nom
Holzhausen
v Cenprop Real Estate (Pty
)
Ltd
[2020] 1 All SA 767 (WCC).
[2]
Probst
v Pick ‘n Pay Retailers
[1998]
2 All SA 186
(W) at 200d-e;
Chartaprops
16 (Pty) Ltd & 1 Or v Silberman
[2008] ZASCA 115
;
2009
(1) SA 265
(SCA) at para
[18]
;
Avonmore
Supermarket CC v Venter
2014 (5) SA 399
(SCA) para [16].
[3]
1966
(2) SA 428
(A) 430E-H.
[4]
Langley
Fox Building Partnership (Pty) Ltd v De Valence
1991
(1) SA 1
(A) at 13A-B, where Goldstone AJA adopted the test in
Kruger
v Coetzee
as the test for whether the defendant employer of a contractor owed
a legal duty of care. Thus, as was pointed out by Nugent
JA in
Pienaar
& Ors v Brown & Ors
2010 (6) SA 365
(SCA) para [30], the test for wrongfulness and for
culpa
in matters where an employer has contracted an independent
contractor are in substance the same.
[5]
Pretoria
City Council v De Jager
1997
(2) SA 46
(A) at 55H-56C, cited with approval in
Chartaprops
n 2 para [48] and
Pienaar
n
4, para [12].
[6]
Alberts
v Engelbrecht
1961
(2) SA 644
(T);
Gordon
v De Mata
1969 (3) SA 285
(A);
Probst
n
2;
Monteoli
v Woolworths (Pty) Ltd
2000
(4) SA 735
(W);
Brauns
v Shoprite Checkers
2004 (6) SA 211
(ECD);
Chartaprops
n 2 at para [18];
Checkers
Supermarket v Lindsay
[2009] ZASCA 26.
[7]
Vide
Probst
n
2 and
Checkers
Supermarket
n 6 (oil);
Alberts
n 6 (wet polish);
Ward
v Tesco Stores
[1976] 1 All ER 219
(CA) (yoghurt);
Jones
v Maceys of Salisbury (Pty) Ltd
1982 (2) SA 139
(Z) (ice-cream);
Lunderstedt
v Pick ‘n Pay Retailers
(WLD Case no 9016138 cited in
Probst
at 199b) (cleaning fluid and water);
Brauns
n 6 (water)
Avonmore
Supermarket CC
n
2 (water). In
Gordon
v De Mata
1969 (3) SA 285
(A) the plaintiff slipped and fell on a cabbage leaf
which had landed on the floor.
[8]
Chartaprops
n 2 at para [16];
Brauns
n 6 at 217E-F.
[9]
Note
2, para [15].
[10]
Id
,
at 200f.
[11]
Colonial
Mutual Life Assurance Society Ltd v MacDonald
1931
AD 412.
[12]
Trustees,
Two Oceans Aquarium Trust
v
Kantey & Templer (Pty) Ltd
2006
(3) SA 138
(SCA) at 144F.
[13]
1937
AD 12.
[14]
Id
,
n
2
at 200g and
Crawhall
v Minister of Transport
1963
(3) SA 614
(T)
.
[15]
Note
2.
[16]
Tindall
AJA concurring.
[17]
Id
,
at 23.
[18]
1968
(3) SA 514 (CPD).
[19]
Id
,
519D-E.
[20]
Id
,
519F-G.
[21]
Id
.
[22]
Note
4.
[23]
Id
,
10H-J.
[24]
As
set out in
Cape
Town Municipality v Paine
1923 AD 207
at 217.
[25]
Langley
Fox
n 4 at 11E-H.
[26]
Id
,
13B-C.
[27]
Id
,
14E.
[28]
Note
2.
[29]
Per
Ponnan JA (Scott, Maya JJA and Leach AJA concurring, and Nugent JA
dissenting).
[30]
Including
Profs Glanville Williams and John Fleming.
[31]
Id
,
para [38].
[32]
Para
[35].
[33]
Which
are based on the approach which was adopted in
Cape
Town Municipality v Paine
n 24.
[34]
Para
[39].
[35]
At
para [20].
[36]
Id
.
[37]
Para
[39].
[38]
Para
[33].
[39]
Para
[40].
[40]
In
Chartaprops
n 2 at para [22] Nugent JA pointed out that whereas a person who
contracts to clean a floor that is used by members of the
public-either under a contract of employment or some other form of
contract-is bound to his employer in respect of his contractual
obligations, it did not necessarily follow that he will be liable to
3rd parties in delict if he failed to do so, even if his
omission
satisfies the ordinary test for negligence as set out in
Kruger
v Coetzee
.
In his view, the same considerations that cast upon the person in
control of the shopping mall a duty to ensure that precautions
are
taken to keep the floors safe militated against an action lying
against the cleaners in this regard, for it was on that person
rather than the cleaners that the public relied for their safety,
vide
para [24]. In his judgment on behalf of the majority Ponnan JA
accepted that the court a
quo
had correctly held that the cleaners were liable for the plaintiff’s
injuries, without alluding to the basis for such liability,
other
than that they had been negligent and the damages which had been
sustained by the plaintiff had been caused solely by their
wrongful
actions or omissions. It appears from the introductory remarks by
Nugent JA at para [4] of his judgment that the basis
for the finding
by the court a
quo
that the cleaners were liable was that they had failed to detect and
remove the spillage with reasonable promptitude, because
their
cleaning system was deficient, a la
Probst
.
[41]
This
seems to have been the basis for the decision in
Avonmore
Supermarket
,
where a cleaner who was employed by the supermarket had mopped a
floor and left it wet, without warning customers or cordoning
off
the area.
[42]
At
para [6].
[43]
T
hat
the defendants were alive to this being the essence of the
plaintiff’s case is evident if one has regard for the remark
which was made by their counsel during cross-examination of the
plaintiff (at p 176:9-11) viz that the defendants understood
that
she was contending that the mall should have had ‘better’
tiles, which did not become slippery and dangerous
when wet.
[44]
Durban’s
Water Wonderland (Pty) Ltd v Botha & Ano
1999
(1) SA 982
(SCA) at 991D-H.
[45]
Id
,
at 991H-992B.
[46]
Id
.
[47]
Id
,
at 992B-D.
[48]
As
per the photograph at p 95 of the
record.