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[2016] ZAECPEHC 19
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Kemp v Shoprite Checkers (Pty) Ltd t/a Shoprite Despatch (2740/2014) [2016] ZAECPEHC 19 (5 May 2016)
Not
Reportable
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: PORT ELIZABETH
CASE NO. 2740/2014
Date
heard: 18 February 2016
Date
handed down: 5 May 2016
In
the matter between:
GIDEON
KEMP
Plaintiff
And
SHOPRITE CHECKERS
(PTY) LTD
t/a
SHOPRITE DESPATCH
Defendant
JUDGMENT
RENQE AJ:
Introduction:
[1]
The plaintiff, Mr Gideon Kemp instituted an action against the
defendant, Shoprite Checkers (PTY) LTD t/a Shoprite Despatch
for
delictual damages arising from an incident which occurred on 7
December 2011 when the plaintiff slipped and fell on the floor
at the
butchery section of the defendant’s store.
[2]
At the commencement of the trial the parties were
ad idem
that
it would be prudent that the question of liability first to be
determined and that the quantum of the plaintiff’s damages
be
left over for a later determination should a need arise to do so.
Consequently, I was requested by the parties at the commencement
of
the trial to order a separation of these issues and I made an order
accordingly.
Parties:
[3]
The Plaintiff was, at the time of the incident employed by Bidvest
Magnum Security (Magnum) as a security guard and was working
at the
defendant’s store in accordance with a contract between the
defendant and Magnum.
[4]
The defendant is a company registered in terms of the Company Laws of
South Africa carrying on business as a retail store at
Dr Rabie
Street, Despatch.
Background:
[5]
The facts and circumstances out of which plaintiff’s claim
arose may be briefly stated as follows:
[6]
On 7 December 2011 at the defendant’s store, the plaintiff was
called upon by one floor manager in the defendant’s
employ to
render security services at the receiving gate in the butchery
section of the defendant’s store. When the
plaintiff
arrived at the landing area of the butchery section he slipped and
fell to the floor. As a result thereof he suffered
injuries and on 21
August 2014 instituted an action against the defendant by virtue of
it being in control of its store. Consequently,
the plaintiff
asserted that the defendant owed a duty of care to prevent dangerous
situation arising on its premises which could
harm or injure third
parties. The following documentary evidence was, by agreement between
the parties placed before the trial
court:
(i)
Exhibit
A, the sketch plan depicting the layout of the defendant’s
store,
(ii)
Exhibit
B, photographs taken at the scene of the accident depicting butchery
section of the defendant
Testimony
of the parties:
[7]
The plaintiff testified that on the day of the incident he was
instructed by the floor manager who was on duty to fetch the
keys for
the butchery receiving gate from the manager’s office. As
he arrived at the landing area of the butchery section
at the top of
the stairs, he slipped, fell and rolled down the steps finally
landing on the third steps. When he stood up, he felt
a fatty and
watery substance on his hands, pants and jersey all of which were
wet. He proceeded to open the receiving gate and
then returned to the
steps to investigate what had caused him to slip. Upon reaching the
third step, and on closer inspection,
he observed tinny pieces of fat
and watery substance.
[8]
The defendant called one witness, Mr Eric Middelkamp who testified
that on the day of the incident, he received a message that
there was
meat to be delivered. He then collected the keys and walked together
with the plaintiff to the butchery section. The
plaintiff remained at
the top of the landing area, whilst he walked down the stairs and
opened the receiving gate. He denied that
it was the plaintiff who
opened the receiving gate. He further denied that there was any tinny
pieces of fat and watery substance
on the stairs as alleged by the
plaintiff. Mr Middelkamp further testified that he almost fell on the
stairs on a previous occasion
and whilst he was still in the process
of warning the plaintiff about the risk of slipping, the plaintiff
fell. He did not know
what had caused the plaintiff to slip and fall.
He testified further that when he almost fell previously it was not
because of
the slippery floor. Rather he had accidentally hooked on a
protruding object and grabbed the railing, which prevented him from
falling to the stairs.
[9]
The plaintiff disputed Mr Middelkamp’s version and reiterated
that he was the one who had collected and signed for the
keys and
thereafter opened the receiving gate.
[10]
Mr Middelkamp testified that photo 4 which appears in Exhibit B
depicts that the tiles on the top steps slope downwards. He
further
testified that indeed there were tinny pieces of fat on the stairs
which, in the normal course would slide down the drain
and become
absorbed by a filter which the defendant would pull and clean out.
[11]
Mr Middelkamp further testified that:
(i)
the butchery section gets cleaned as and when there is spillage on
the floor. During cross-examination he
confirmed that in the process
of making sausages, they use minced meat and pieces of fat and it
could be expected that those fats
might fall onto the floor. He
further confirmed that fluid, water or blood could also fall onto the
floor and that when this occurs
the floor could well be wet and
slippery and this create a dangerous situation because of the
downward slope on the stairs.
(ii)
he was busy on the morning of the incident and confirmed that he
could not say what actually transpired in
the butchery section before
he went there as his attention and effort were directed at the front
area of the butchery.
Issues
to be decided:
[12]
The question that must be determined by this court is whether or not
the plaintiff suffered injuries as a result of the defendant’s
negligence. Furthermore, whether or not the defendant was aware of
the existence of a potential danger and whether he took any
precautionary measures to prevent the risk of harm to others.
There are two conflicting versions that the court has to deal
with in
order to determine whether the defendant was negligent, I shall
return to this topic later.
Analysis
and findings:
[13]
The test for the imposition of liability for negligence has been
authoritatively stated in
Kruger v Coetzee
1966 (2) SA 428
(A)
at
430 E-G. There the court said:
“
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.”
[14]
It is necessary to consider the contentions made by the parties in
their pleadings. Initially the plaintiff asserted
in his
particulars of claim that he slipped as a result of water left
unattended on the floor. He later filed an amendment and
alleged that
he fell as result of ‘mixture of fatty pieces and /or fatty
substance and/ or water left unattended on the floor’.
Counsel for the defendant made an issue about this
amendment, suggesting that plaintiff was not certain of the exact
nature of the substance that was on the floor. It is not unusual that
when one gives instruction to ones legal representative to
institute
an action, they rarely get an opportunity to check whether the
information that is contained in the particulars claim
was accurately
captured. Therefore, I do not have any qualms with the fact that
there were amendments made in the particulars of
claim.
[15] If regard is had
to the defendant’s plea, as amended, the defendant’s
disputes the plaintiff’s claim on the
following broad basis;
(i)
That the plaintiff ,injured himself in the butchery section of the
store where public is not allowed
and that due to the nature of the
butchery activities conducted therein it was expected that hazards
may present themselves requiring
extra care from those entering the
area.
(ii)
That the plaintiff was verbally warned to take care when traversing
the steps where he fell.
(iii)
That the plaintiff by virtue of his employment, at the defendant’s
store was aware or ought reasonably
to have been aware of possibility
of water or similar substance, spillage in the area.
[16]
With regard to the issue of the public not being allowed in the
butchery section, this argument is, in my view unsustainable
as it is
common cause that the plaintiff was on duty on the day of incident
and was given express instructions to attend to the
delivery, which
in terms of the defendant’s own rules must be done in the
presence of a security guard. Furthermore, the
plaintiff was in the
company of the defendant’s manager.
[17]
Turning attention to the issue of the warning about which Mr
Middelkamp testified that the plaintiff fell while he was
still in a
process warning him about the possibility of falling.
Furthermore, the defendant admitted that there were no warning
signs
at all in the area. It can therefore be concluded that the plaintiff
was not warned prior to him walking down the stairs
as alleged in the
defendant’s plea.
[18]
The last issue raised was that the plaintiff ought to have reasonably
been aware of possibility of water or similar spillage
in the area.
This is questionable as there would have been no way that the
plaintiff could have been aware of the potential hazards
in the area
as it was his first time to carry out instruction in the butchery
section.
[19]
In now deal with the two conflicting versions of the plaintiff and
the defendant’s witness, Mr Middelkamp. When faced
with the two
conflicting versions, a trial court is enjoined to examine the
reliability and the credibility of the witnesses. Paramount
in this
regard would be the consistency of each witness and where appropriate
draw inferences in the light of inherent probability
and
improbabilities. The technique used to resolve two
mutually exclusive versions was restated and explained
in
Stellenbosch Farmers’ Winery Group Ltd and Another v
Martell Et Cie & Others
2003 (1) SA 11
(SCA),
There the
Supreme Court of Appeal said at D-H:
(‘The
technique generally employed by the courts in resolving factual
disputes of this nature may conveniently be summarized
as follows.
To come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various
factual witnesses; (b)
their reliability; and (c) the probabilities. As to (a), the court’s
finding on the credibility of
a particular witness will depend on its
impression veracity of the witness. That in turn will depend on a
variety of the subsidiary
factors , not necessarily in order of
importance , such as (i) the witness’ candour and demeanor
in the witness
box , (ii) his bias , latent and blatant (iii)
internal contradictions in his evidence, (iv) external factors with
what was
pleaded or put on his behalf , or with established facts or
with his own extracurial statements or actions (v) the probability or
improbability of particular aspect of his version, (v) the caliber
and cogency of his performance compared to that of other
witnesses testifying about the same incident or events. As to the
(b), a witness’ reliability will depend, apart from the
factors
mentioned under (a) (ii), (iv) and (v) above, on (i) the
opportunities he had to experience or observe the event in question
and (ii) the quality, integrity and independence of his recall
thereof. As to (c), this necessitates an analysis and evaluation
of
the probability or improbability of each party’s version on
each disputed issues. In the light of this assessment of (a)
(b) and
(c) the court will then, as final step, determine whether the party
burdened with the onus of proof has succeeded in discharging
it’).
[20]
There were numerous inconsistencies that were manifest in Mr
Middelkamp’s evidence. I will mention the most material
ones,
namely;
(i)
Access
to the keys:
during
cross-examination he said that if a person is not a manager, he would
not be allowed to sign for the keys.
[1]
When he was asked what then happens when there was no manager
available he said the security would not sign for the keys and that
there is a manager available for 24 hours at the store.
[2]
During re-examination the following day, he changed his version and
said the floor manager would let the security to sign for the
keys.
[3]
(ii)
Scale:
when
he was asked about the white square, which appeared in Exhibit B, he
confirmed during cross-examination that, that was
the
scale and when one pulls the flap the scale opens. And that it is
possible to place books on it when opened. The plaintiff
testified
that the scale was opened on the date of the incident and Mr
Middelkamp placed the GR book on it. Mr Middelkamp, under
cross-examination, mentioned that before the plaintiff fell, the
scale was not used, it was closed and when he was asked later
as to
how the plaintiff would know that if one pulls the flap the scale can
serve as a workplace as it was his first time to go
to the butchery
section. He could offer no plausible explanation. He was constrained
to change his version and said that he showed
the plaintiff how to
open it. Counsel for the defendant picked up this inconsistency hence
his abortive attempts to interject when
Mr Middelkamp failed to
explain the inconsistency in relation to this aspect of his
version
[4]
.
[21]
In light of what has been said immediately above, it becomes evident
that Mr Middelkamp is not a reliable and credible witness.
Mr
Middelkamp’s demeanor as a witness crumbled miserably under
cross-examination thereby giving the impression that his testimony
was possibly fabricated and not based on facts. By way of
example, if one is required, he appeared to be anticipating
a
follow-up question before it was asked and then fell miserably off
balance when asked the same question differently. In
contrast
the plaintiff was overall consistent and his testimony was both
credible and reliable. And thus accords with
the inherent
probabilities.
[22]
In light of the above, I am driven to the conclusion that the
floor was not dry on the day of the incident giving
rise to the
plaintiff’s claim as testified to by the plaintiff. And
that the defendant should have foreseen that someone
entering the
butchery section could slip and possibly be injured. Accordingly
it is clear that on the evidence that the incident
was reasonably
foreseeable and that the defendant should have taken reasonable steps
to guard against the occurrence of the incident,
which the defendant
failed to do. As a reasonable person in the position of the
defendant would have foreseen the possibility
of his conduct causing
harm to others he would have taken steps to guard against such
injury. The plaintiff has, in my view, succeeded
in establishing
negligence on the part of the defendant.
[23]
It bears mentioning that, it is common cause that the plaintiff was
instructed to conduct work in a potentially dangerous environment.
Therefore, given the prevailing circumstances at the time, the
defendant owed the plaintiff a duty of care.
[24]
Consequently, the defendant failed to discharge its duty of care to
the plaintiff by ensuring that proper and effective measures
were in
place to guard against harm or injury to others. As already stated
above, the defendant was therefore negligent in failing
to take
reasonable steps to keep the area monitored, cleaned and ensuring
safety to any person entering it. In
Fritz
v Sal-Vred-Dealers CC
[5]
,
the court found that the goods receiving section at the defendant’s
premises (a situation comparable to the facts of this
case) was an
area to which the defendant’s duty of care was applicable.
Furthermore,
no warning signs and disclaimer notices were affixed in a prominent
place in the area concerned. ( See in this regard
,
Niemand
v Old Mutual Investment Group (Pty) Ltd,
[6]
where the court said at the time of the incident under
consideration at that place there were no disclaimer notices
displayed at the loading area and consequently found the
defendant liable for the plaintiff’s damages).
[25]
The defendant in the alternative pleaded contributory negligence, in
that the plaintiff did not keep a proper look out as he,
by virtue of
his employment at the defendant premises ought to have reasonably
been aware of the possibility of water or similar
spillage in the
area. It is noteworthy to point out that, it was the plaintiff first
time to carry out duties at the butchery section.
In this
instance the defendant bears the onus to prove negligence on the part
of the plaintiff. With regard to the plaintiff’
s alleged
failure to keep a proper look out, it is my view that the defendant
failed to establish on a preponderance of probability,
that whatever
substance that may have been spilled on the floor was readily visible
to the naked eye. Thus the defendant’s
contention in this
regard is devoid of merit.
[26]
Consequently, it is my conclusion that the Plaintiff has established
all the elements of delictual liability and is accordingly
entitled
to damages.
[27] In the results I
make the following order:
(i)
The
defendant is held liable to pay to the plaintiff such damages as the
plaintiff is able to prove that he suffered as a result
of the
injuries sustained on 7 December 2011 at Shoprite Despatch, Dr Rabie
Street, Despatch.
(ii)
The
defendant is ordered to pay the plaintiff’s costs occasioned
by the hearing of the merits.
FY RENQE
ACTING JUDGE OF THE
HIGH COURT
Counsel
for the Plaintiff: PH Mouton
Instructed
by:
Lessings Heyns Keyter & Van Der Bank Inc
77
Cape Road
Mill
Park
Port
Elizabeth
Ref:
Ms W Van Der Bank/TK/K1325
Counsel for the
Defendant : J Nepgen
Instructed by:
De Villiers & Partners Attorneys
62
Erasmus Drive
[1]
Volume 1 of the record page 109 line 25 .
[2]
Volume 1 of the record page 110 line 10.
[3]
Volume 1 of the record page 134 line 20.
[4]
Volume 1 of the record page 115 line15-20.
[5]
Unreported judgment of the Western Cape
High Court (Eastern Circuit Local Division, Goerge) delivered
on 14
th
April 2010 under case number 3373/2010.
[6]
Unreported judgment of the North
Gauteng High Court, Pretoria delivered on 1 June 2012 under case
number 35421/2009.