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[2014] ZASCA 42
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Avonmore Supermarket CC v Venter (211/13) [2014] ZASCA 42; 2014 (5) SA 399 (SCA) (31 March 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case No: 211/13
In the matter
between:
AVONMORE
SUPERMARKET
CC
...................................................................
Appellant
and
CHRISTINA
PETRONELLA
VENTER
..........................................................
Respondent
Neutral
citation
:
Avonmore
Supermarket CC
v
Venter
(211/13)
[2014] ZASCA 42
(31 March
2014)
Coram:
Ponnan, Mhlantla, Petse and Willis JJA
et Van Zyl AJA
Heard:
6 March 2014
Delivered:
31 March 2014
Summary:
Delict – negligence –
shopper slipping and falling and sustaining injuries – claim
for damages against owner of
the supermarket.
ORDER
On
appeal from
: KwaZulu-Natal High Court,
Durban (D. Pillay J) sitting as court of first instance):
1
The appeal is dismissed with costs.
2
Paragraph 1 of the order of the high court of 7 December 2012 is
amended to read:
‘
It
is declared that the defendant is liable for such damages as might be
agreed upon or proved in consequence of the event that
is the subject
of this claim.’
JUDGMENT
Mhlantla
JA
( Ponnan, Petse, Willis JJA and
Van Zyl AJA concurring):
[1]
A lunchtime visit to a supermarket ended badly for Ms Christina
Venter (the respondent). On Friday 30 June 2006, the respondent
and
her colleague Ms Karen Loumeau were shopping at a supermarket owned
by Avonmore Supermarket CC (the appellant) when she slipped
and fell
on a damp floor. As a result of the fall she sustained bodily
injuries and in consequence instituted a delictual action
for damages
against the appellant in the KwaZulu-Natal High Court, Durban.
[2]
In her particulars of claim the respondent alleged that the appellant
was negligent in that it failed to supervise the cleaning
of the
supermarket floor adequately; it failed to ensure that adequate steps
were taken to warn customers, and in particular the
respondent, of
the hazard created by the wet floor; and it failed to ensure that
proper systems were in place when cleaning the
floor.
[3]
In the alternative, the respondent alleged that the incident occurred
as a result of the negligence of one or more of the employees
of the
appellant acting in the course and scope of their employment as such
who were negligent in the following respects:
(a) they failed to
ensure that the aisle was free of water and/or slippery fluids;
(b) they failed to
take adequate steps to dry the floor surface in the aisle;
(c) they allowed
water and/or slippery fluids to remain on the floor in the aisle in
such a fashion and at such a place that it
constituted a hazard to
members of the public and to the respondent in particular; and
(d)
they failed to warn members of the public and particularly the
respondent adequately or at all, of the danger created by the
wet and
slippery floor.
[4]
The appellant in its plea denied any negligence either on its part or
on the part of its employees. It further pleaded that
the nature of
its business required its floors to be cleaned frequently and it had
as a result employed at arm’s length the
services of an
independent firm named DBU Cleaning Services CC (DBU) to clean the
store, and DBU in turn employed persons to do
the cleaning. The
appellant pleaded that it:
(a) at all material
times maintained reasonable systems for the detection, identification
and cleaning of spillages at the store;
and
(b) at all material
times, implemented and maintained the proper execution of reasonable
and safe systems for the cleaning of floors,
including without
limitation the erection of visible warning signage.
Lastly,
the appellant pleaded that the independent contractor was liable in
the event the cleaners were found to have been negligent.
[5]
The matter proceeded to trial in the high court before D Pillay J. At
the commencement of the proceedings, the learned judge
ordered, at
the request of the parties, in terms of Rule 33(4) of the Uniform
Rules of Court, that the issue of liability be determined
separately
from the question of damages. The parties thereafter adduced
evidence. Ms Venter and Ms Loumeau testified on behalf
of the
respondent, whilst Mr James Slater testified for the appellant.
[6]
At the conclusion of the trial, the court below concluded that the
sole cause of the respondent’s fall was the damp floor
and that
the appellant had failed to give adequate notice to its customers
warning them of the potential danger. It found that
the appellant was
liable as it exercised full control over the cleaners and there was
no acceptable evidence to suggest that it
had indeed contracted with
DBU. The court upheld the respondent’s claim and issued an
order that the appellant was liable
for the damages suffered by the
respondent. It held the appellant liable for the costs of that
hearing and postponed the issue
of quantum sine die. The appeal to
this court against that order is with the leave of the court below.
[7]
The court below, when granting leave to appeal, invited us to
consider the matter in the light of the
Consumer Protection Act 68 of
2008
. At the commencement of the appeal, both parties submitted,
correctly in my view, that this Act was not applicable to the matter
at hand. Neither party had raised the applicability of the Act in the
pleadings or argument. Nothing more needs to be said about
this
aspect, save to observe that it appears to have prompted the grant of
leave to appeal to this court where the matter may otherwise
not have
been deserving of the attention of this court.
[8]
The first contention advanced by the appellant before this court was
that it was absolved from liability by virtue of the contract
which
it asserted was in place between it and DBU. Generally a principal is
not liable for the wrongs of an independent contractor
or its
employees except where the principal was at fault.
[1]
The appellant relied on this principle. However, in order to succeed,
the appellant had to establish the existence of a valid contract
between it and DBU. The appellant in its plea stated that it at arm’s
length had contracted DBU to provide cleaning services.
It did
not specify the terms of the contract, nor did it annex the contract.
It simply, in reply to a query by the respondent,
produced a copy of
a contract in terms of
Rule 37(4).
Before us, counsel for the
appellant relied on this document and the evidence of Mr Slater, the
manager of the supermarket, that
DBU had been engaged by the
appellant to clean the store and was responsible for the employment
of the cleaners. He submitted that
the contract was valid and that
DBU would be liable in the event the cleaners were found to be
negligent.
[9]
This argument is without merit. No evidence was adduced at all to
prove the contract. It was simply placed before the high court
as
part of a bundle of documents. An analysis of the contract reveals
that it was concluded in January 2001 for a period of 12
months. It
had expired four years before the incident. It is incomplete as it
does not define the scope of the work. There is no
reference to the
contract fee, premises etc. It transpired during the course of the
evidence of Mr Slater that he had no personal
knowledge of the
contract as he was employed by the appellant after the contract had
been concluded. It follows that the
appellant has failed to
establish the existence of the contract between it and DBU and that
defence does not avail it.
[10]
The sole remaining issue therefore is whether the appellant was
negligent. The ordinary test for establishing the existence
or
otherwise of negligence was articulated by Holmes JA in
Kruger
v
Coetzee
[2]
in the following terms:
‘
For
the purposes of liability
culpa
arises if
−
(a)
a
diligens
paterfamilias
in the position of the
defendant
−
(i)
would foresee the reasonable possibility of
his conduct injuring another in his person or property and causing
him patrimonial loss;
and
(ii)
would take reasonable steps to guard
against such occurrence; and
(b)
the defendant failed to take such
steps.
This
has been constantly stated by this Court for some 50 years.
Requirement (
a
)
(ii) is sometimes overlooked. Whether a
diligens
paterfamilias
in the position of the
person concerned would take any guarding steps at all and, if so,
what steps would be reasonable, must always
depend upon the
particular circumstances of each case. No hard and fast basis can be
laid down.’
[11]
Turning to the facts of this case, the essence of the respondent’s
evidence was that she and her colleague Ms Loumeau
had been at the
supermarket and were walking together from the butchery section. She
was about two metres into the aisle when she
slipped on the floor and
fell. She saw a sign indicating that the floor was wet but it was on
the far side of the aisle. There
was a cleaner in close proximity to
that sign. The floor was wet and the respondent surmised that the
floor must have been wet
on account of the cleaner in the vicinity.
[12]
Ms Loumeau’s account of what happened corroborated the
respondent’s testimony in material respects. She was the
first
person to attend to the respondent as they were together when she
fell. Mr Slater arrived later.
[13]
The evidence adduced on behalf of the appellant was to the effect
that the appellant had conducted a routine cleaning operation.
Mr
Slater testified that a male cleaner, Alson, who had since died, had
recently mopped the area where the respondent had fallen.
He stated
that he was at the butchery section when he
saw the respondent. She was alone
and when she rounded the corner entering
the aisle, she slipped and fell.
Importantly, Mr Slater testified that when he went to the
respondent’s assistance, the floor
was damp.
[14]
The following facts are common cause or at least not in dispute:
(a) the respondent
was at the supermarket;
(b) the appellant
had undertaken a routine cleaning operation of the store.
(c) the cleaner,
Alson mopped the floor and moved away from the area whilst it was
damp or wet;
(d) the mopping of
the supermarket floor created a potential danger to shoppers;
(e)
the respondent slipped on the damp floor and fell;
(f) A warning sign
indicating that the floor was wet or slippery was beyond the point
where she fell; and
(g)
the cause of her slipping and falling was the damp floor.
[15]
In so far as the enquiry under (a) and (b) of the test is concerned,
there can be no doubt that the reasonable possibility
of a person
slipping and falling as a result of a damp floor was foreseeable.
That was conceded by Mr Slater in his evidence. The
appellant was
accordingly obliged to take such precautions as were reasonable to
guard against that eventuality. What these steps
would have been
depends on an examination of all the relevant circumstances. In
Ngubane
v
South
African Transport Services
,
[3]
the court said:
‘
Once
it is established that a reasonable man would have foreseen the
possibility of harm, the question arises whether he would have
taken
measures to prevent the occurrence of the foreseeable harm. The
answer depends on the circumstances of the case. There are,
however,
four basic considerations in each case which influence the reaction
of the reasonable man in a situation posing a foreseeable
risk of
harm to others:
(a)
the degree or extent of the risk created by the actor’s
conduct;
(b)
the gravity of the possible consequences if the risk of harm
materialises;
(c)
the utility of the actor’s conduct; and
(d)
the burden of eliminating the risk of harm.’
[16]
It was accepted on behalf of the appellant that as the owner of a
store, it had a legal duty to ensure that its premises were
safe for
those who use them.
[4]
The issue therefore is whether the steps taken by the appellant were
reasonable under the circumstances. Counsel for the appellant
submitted that it had taken reasonable steps to guard against the
risk of harm that the cleaning of its store posed to customers.
In
this regard reliance was placed on the testimony of Mr Slater who
outlined the measures taken by the appellant to ensure that
its store
was clean and safe during trading hours.
[17]
In this regard Mr Slater testified that the appellant had its own
rules and regulations about what had to be done, things to
be cleaned
and processes to be followed. The managers on the floor would ensure
that any mistakes by any cleaner were corrected.
Any spillage on the
floor would be brought to the attention of the manager whereafter the
area would be sealed off and cleaned.
He stated that the two
cleaners would clean in the morning before the customers came in.
During the day, they would do general
maintenance and attend to any
spills. He, as manager, would inspect the store throughout the day to
check that it was clean. The
cleaners were provided with specialised
cleaning equipment. They were obliged to put up the signs indicating
that the floor was
wet or slippery in the vicinity of the area they
were working in. They had to mop and wipe the floor and ensure that
the area was
not saturated with water. He stated that it would not be
dangerous not to have displayed the sign, but would be negligent.
[18]
In
Probst
v
Pick
‘n Pay
,
[5]
the plaintiff had slipped on some cooking oil which had spilled on
the floor. The court held that the defendant did not have a
proper
system to cover the shop floor at reasonable intervals and this had
led to a situation in which it could take hours to discover
a
spillage. The defendant was found to be negligent and liable for the
plaintiff’s damages.
In
Brauns
v
Shoprite
Checkers
,
[6]
the plaintiff whilst shopping at the defendant’s shop fell on a
slippery surface on the floor. It transpired that there was
a
quantity of water on the floor at the place where she fell. It was
established that the water had been there for half an hour
or longer
before the plaintiff fell, and that the defendant had been forewarned
of the potential hazard to customers but had taken
no steps to warn
the customers of the water on the floor or to have the water cleaned
up. The defendant was found to have been
negligent and liable for the
damages of the plaintiff.
[19]
Whilst the cases like
Probst
and
Brauns
are
instructive, it is important to recognise that they were concerned
with the danger created by a spillage that went undetected
and the
focus was on the adequacy of the system in place to detect and deal
with spillages. In this case unlike in
Probst
and
Brauns
a voluntary task, namely a routine cleaning, was undertaken at the
instance of the appellant. Alson
mopped the floor.
Notwithstanding the measures outlined by Slater, Alson
did
not ensure that the area was dry when he moved on. Nor did he
place a warning sign for the benefit of the shoppers sufficiently
close to the area concerned to warn them that it was slippery or wet.
[20]
I accept that there is a need to mop the floors of a store to ensure
that it is clean. However, the manner of execution of
that task is
crucial.
It is clear that the appellant’s conduct caused
the danger. The routine cleaning operation was done during a busy
period.
The cleaner left behind him a damp floor.
That should not have happened. The cleaning operation should have
been conducted in such
a manner that the cleaner ought to have worked
on a small area and
ensured that the area was dry before
moving on.
In my view that would not have placed
an onerous burden on him or his supervisor. This routine cleaning
operation created a potential
hazard to customers and in particular
the respondent. The appellant had a duty to regulate its conduct in
order to minimise or
eliminate the risk of harm.
I accordingly
conclude that negligence has been established.
[21]
It follows that the respondent’s fall and subsequent injury
were caused solely by the negligence of the appellant and
its
employees. The appeal therefore fails.
[22]
In the result, the following order is made:
1 The appeal is
dismissed with costs.
2 Paragraph 1 of the
order of the high court of 7 December 2012 is amended to read:
‘
It
is declared that the defendant is liable for such damages as might be
agreed upon or proved in consequence of the event that
is the subject
of this claim.’
N.Z
MHLANTLA
JUDGE
OF APPEAL
APPEARANCES
:
For
Appellant: M Pillemer SC (with him S Hoar)
Instructed by:
Barkers Attorneys
Matsepes Inc,
Bloemfontein
For
Respondent: K. C McIntosh
Instructed by:
Thorrington –
Smith & Silver
Phatshoane Henney,
Bloemfontein
[1]
Chartaprops
16 (Pty) Ltd & another v Silberman
[2008] ZASCA 115
;
2009 (1) SA 265
(SCA) para 28.
[2]
Kruger
v
Coetzee
1966 (2) SA 428
(A) at 430E-G.
[3]
Ngubane
v
South
African Transport Services
[1990] ZASCA 148
;
1991 (1) SA 756
(A) at 776G-I.
[4]
Probst
v
Pick
‘n Pay Retailers (Pty) Ltd
[1998] 2 All SA 186
(W) at 200. See too
Brauns
v
Shoprite
Checkers (Pty)
Ltd
2004 (6) SA 211
(E) and
Swinburne
v
Newbee
Investments
(Pty)
Ltd
2010 (5) SA 296
(KZD) para 13.
[5]
Above
at 201.
[6]
Above
at 219C-220D.