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[2022] ZAECPEHC 9
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Pete v Boxer Superstore (Pty) Ltd (1785/2021) [2022] ZAECPEHC 9 (5 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, GQEBERHA)
CASE
NO. 1785/2021
In
the matter between:
CAYMORE
MELISSA PETE
and
BOXER
SUPERSTORE (PTY) LTD
JUDGMENT
GQAMANA
J:
[1]
On 3 September 2020, the plaintiff, Ms Pete was doing shopping for
her grandmother
at Boxer Superstore, Cleary Park Mall, when she
slipped and fell on the floor. As the result of the fall the
plaintiff sustained
bodily injuries which then caused her to suffer
damages. She sued the defendant, Boxer Superstore (Pty) Ltd and seeks
to recover
her damages. At the commencement of the trial, the parties
requested my approval of their agreement at the pre-trial conference
that the trial should proceed and adjudicate the question of the
defendant’s liability separately and to let the issue of
quantum of damages to stand over for determination at a later stage.
I accordingly granted an order in terms of Rule 33(4) and
postponed
the issue of quantum and proceeded with the trial on the issue of the
defendant’s liability.
[2]
The case pleaded by the plaintiff in her particulars of claim is
that:
2.1 the
defendant has a legal duty to members of the public (plaintiff
included) to ensure that its store was
safe and free of any obvious
hazards which would pose risk to them; and
2.2 the
defendant was negligent because it failed to clean up the cake flour
spillage on the floor and to ensure
that the luxury aisle was clean
and free of hazards which posed a risk to shoppers.
[1]
[3]
The defendant in response to the plaintiff’s claim denied that
the hazards were
obvious. It further pleaded that the plaintiff
slipped and fell due to her sole negligence in that, she failed:
3.1 to
keep a proper lookout;
3.2 to
take reasonable and / or necessary steps in the circumstances to
prevent her fall; and
3.3 to
avoid injury to herself when she could and should have done so.
[4]
As an alternative, the defendant pleaded contributory negligence on
the part of the
plaintiff.
[5]
Clearly from the pleadings there are two issues that require
determination namely,
the wrongful conduct by the defendant and
negligence.
[6]
Only two witnesses testified at court, the plaintiff herself and Mrs
Stride
for the defendant. The plaintiff also presented
evidence of a video footage which captured the incident inside the
store when the
plaintiff slipped and fell on the surfaced floor. The
extract of this video footage was for a very short period of
approximately
thirty-two seconds and such evidence was not contested
by the defendant.
[7]
The plaintiff’s evidence was that on 3 September 2020, at
approximately 10h00
in the morning she went to Boxer Store at Cleary
Park Mall for a shopping with her boyfriend’s aunt and the
latter’s
daughter. The store was busy because it was during the
social grants payment period. The inside floors of the store were
tiled
with white tiles which were non-slippery. She was wearing flat
pump ladies’ shoes. She was not a debut shopper at the
aforesaid
store, as she had been there on numerous occasions. She
conducted her normal shopping and she went to the till in order to
pay
for her purchases. She was informed by the cashier that because
she has bought viennas, she was entitled to a free packet of hot
dog
buns. She then went back to fetch the buns at the bakery section.
Three to four steps from the till at the luxury aisle section,
as she
turned the corner she slipped and fell. She noticed only after she
had fell that there was a spillage of cake flour on the
floor where
she fell. Two employees of the defendant came to assist her and she
was taken to a room where she was given a first
aid assistance.
[8]
The plaintiff under cross-examination admitted that had it not been
the cake flour
spillage, she would not have fell. She further
admitted that she was in a hurry to fetch the buns from the back of
the store at
the bakery section and did not want to keep the cashier
waiting because her trolley was already at the till. But she denied
that
she was running. She conceded that the cake flour spillage was
not visible and she only saw it when she fell. It was further put
to
her that, the defendant’s witness would testify that there was
no spillage of flour on the floor where she slipped and
fell, a
proposition which was vehemently rejected by the plaintiff. She was
unshaken on her testimony that she saw the spillage
of cake flour
where she fell.
[9]
The defendant called Mrs
Stride
as its witness. She was and is
still employed by Boxer Store Cleary Park as an administrative clerk
and a Supervisor. On the day
in question she was busy with her duties
and she was at the back of the store in the aisle close to the area
where the plaintiff
fell. She saw the plaintiff when she fell. She
testified that she did not observe any cake flour on the floor before
and even after
the plaintiff fell. But she did not inspect the combo
packages in that vicinity to check whether there was any broken item
however
one of her colleagues conducted the inspection. That
colleague was not called to testify in this trial. The outcome of
such inspection
is unknown to me. She testified further that the
employees of the defendant had an obligation to keep the floors clean
and had
she saw the cake flour spillage on the floor, she would have
cleaned it.
[10]
Under cross-examination she testified that the plaintiff was behind
her when she fell. She conceded
that spillage of cake flour on the
floor would have caused danger to the shoppers. She further admitted
that, there were stack
of 12.5 kg flours packed in the area were the
plaintiff slipped and fell as depicted on the video footage. She
further testified
that she saw one of the defendant’s male
employee packing the flour and when the plaintiff fell, this employee
was still
busy packing. She further conceded that because that
employee was still busy packing, he had not clean the area and he
would have
cleaned it after he had finished packing them. Of
significance herein is that she conceded that on probabilities the
flour on floor
would have emanated from the floor bags that the
employee was busy packing and that caused the plaintiff to slip and
fell.
[11]
As mentioned in paragraph 2 above, the plaintiff pleaded that the
defendant had a legal duty
to keep the floors clean from any obvious
hazards which would pose a risk to the shoppers. Furthermore, it is
pleaded on her behalf
that the defendant failed to clean the floor
and as such it was negligent.
[12]
Having regard to the manner in which the case was pleaded and the
evidence led my point of departure
is that, in a case of liability
for an omission, wrongfulness arises if the defendant had a legal
duty to act positively. In
Van
Eeden v Minister of Safety and Security (Women’s Legal Centre
Trust,
as
A
micus
Curiae)
[2]
it
was said that:
“
The
appropriate text for determining wrongfulness [of an omission] has
been settled in a long line of decisions of this Court. An
omission
is wrongful if the defendant is under a legal duty to act positively
to prevent the harm suffered by the plaintiff. The
test is one of
reasonableness. A defendant is under a legal duty to act positively
to prevent harm to the plaintiff if it is reasonable
to expect of the
defendant, to have taken positive measures to prevent the harm.
”
[13]
I will first deal with the issue of wrongfulness. Mr
Jooste
,
counsel for the defendant ardently argued that the plaintiff’s
case as pleaded does not pass muster in that there were no
obvious
hazards which posed a risk to the shoppers. In advancing that
argument, he made submission that there was no duty upon
the
defendant or its employees to inspect every corner of the store and
there should have been something that triggered the duty.
According
to Mr
Jooste
, because the spillage of the flour on the floor
was invisible, the defendant and/or its employees would not have been
aware of
such spillage on the floor. The defendant however accepted
that had its employees been aware of the spillage, they should have
cleaned it, but they were oblivious of its preserve.
[14]
In
Probst
v Pick ṅ Pay Retailers (Pty) Ltd
,
[3]
Stegmann
J
said the following:
“
1.
As a matter of law, the defendants owed
a duty to persons entering their shop at Southgate during trading
hours, to take reasonable
steps to ensure that, at all times during
trading hours, the floor was kept in a condition that was reasonably
safe for shoppers,
bearing in mind that they would spend much of
their time in the shop with their attention focussed on goods
displayed on the shelves,
or on their trolleys, and not looking at
the floor to ensure that every step they took was safe.
2.
The duty on the keeper of a supermarket to take reasonable steps
is not so onerous as to require that every spillage must be
discovered
and cleaned up as soon as it occurs. Nevertheless, it does
require a system which will ensure that spillages are not allowed to
create potential hazards for any material length of time, and that
they will be discovered, and the floor made safe, with reasonable
promptitude.
”
[15]
Mrs
Stride
testified that she or the defendant’s
employees would have cleaned the spillage of the four on the floor
had she/they have
been aware of its presence. She did not see the
flour even after the plaintiff had fell. A fundamental portion of her
testimony
is her concession that there was an employee of the
defendant who was busy packing the flour at the area or vicinity and
the time
when the plaintiff slipped and fell. Although the substance
upon which the plaintiff slipped was not admitted by the defendant,
but her evidence lends credence to the plaintiff’s version that
she slipped on the flour which was on the floor. Mr
Jooste
correctly so, conceded that the plaintiff slipped on flour is not an
improbable inference to be drawn. As summarised somewhere
above in
this judgment the plaintiff’s testimony was that she saw that
there was a spillage of the cake flour on the floor
and she only
noticed the spillage after she had slipped and fell. Her evidence was
further that it was the flour that caused her
to slip and fall.
[16]
In
Holtzhausen
v Cenprop Real Estate (Pty) Ltd and another
,
[4]
a judgment which I was referred to by Mr
Jooste
,
the court re-iterated the principle that the duty to take reasonable
steps to safeguard shoppers to a mall and the floors in it
from the
risk of danger or harm falls on the owner of the mall.
[17]
In the instant matter, the defendant or its employees had the legal
duty to keep the floor clean
and free of hazards to the shoppers. The
mere fact that the defendant’s witness Mrs
Stride
had not seen the spillage on the floor does not absolve the defendant
of its legal duty. The plaintiff’s evidence was clear
that
although she had not seen the flour before she slipped but she saw it
as she slipped and it was visible. She however could
not provide any
explanation why she did not see the flour before she fell. I cannot
lose sight of the fact that the flooring inside
the store was white
tiles and the cake flour is a white substance, and its visibility
when spilled on such surface would not be
readily glaring. Further as
postulated in
Probst
(
supra
),
shoppers inside a store focus their attention on the goods on the
shelves and not by looking at the floor to ensure it was safe.
Here,
the plaintiff’s attention was to get to the bakery section to
get the hot dog buns that she was looking for. It was
for the
defendant or its employees to ensure that there were no substance on
the floor which posed danger to the shoppers and to
keep the floors
clean. The defendant failed to keep the floor at its store clean and
free of hazards and accordingly it breached
its legal duty. Such
failure therefore to take steps to prevent harm to the shoppers
constitutes wrongful conduct on the part of
the defendant. In
Brauns
v Shoprite Checkers (Pty) Ltd.
[5]
Jones
J, confirmed and applied the principle that a supermarket owner owes
a duty to persons entering its shop to take reasonable steps
to
ensure that spillages on the floor are not allowed to create a
potential hazard to the shoppers.
[18]
On the question of negligence, the test is that set out in
Kruger
v Coetzee
.
[6]
“
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 personal
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
.”
[19]
The main contested issues by the defendant are the foreseeability and
the reasonable steps that
should have been taken to guard against the
plaintiff slipping and injury herself. It was pleaded and argued on
behalf of the defendant
that, the incident was caused by and due to
the sole negligence of the plaintiff in that:
19.1 she failed to
keep a proper lookout in respect of the surface upon which a
reasonable shopper would be required to walk
upon;
19.2 she failed to
take reasonable or necessary steps to prevent her from falling; and
19.3 she failed to
avoid injury to herself, where she could and should have done so.
[20]
It is common cause that the inside floors of the store were white
non-slipper tiles. The plaintiff
was wearing flat pump shoes. It was
not her debut visit in the store, she had been to the store on many
times, before this incident.
The shop was busy. She had proceeded
with her shopping up to the stage where she had approached the till
section with her trolley
to pay for her groceries. She was informed
by the cashier that she qualifies to get a free packet of hot dog
buns because she had
purchased a packet of viennas. She left her
trolley at the till and walked to the back of the store to the bakery
section. She
was not running but was walking at a faster pace than
normal. Three or four steps from the till section, as she turned a
corner
at the luxury aisle she slipped and fell. As she fell she not
a spillage of cake flour on the floor. The flour was visible, but
was
not large quantity. As she walked to the bakery section her attention
was not on the floor but to her intended destination.
[21]
The defendant witness, Mrs
Stride
, testified that a male
employee of the defendant was busy unpacking the flour on the pallets
at aisle where the plaintiff slipped
and fell. It was also clear from
the video footage that the plaintiff slipped on something. The
plaintiff’s evidence is that
she slipped on the cake flour on
the floor because she saw it as she fell. Although the defendant’s
witness testified that
there was no flour visible in the vicinity but
Mr
Jooste
accepted that it is not an improbable inference that
plaintiff fell on the flour.
[22]
On the probabilities, the flour on the floor emanated from the bags
of flour and the spillage
occurred when they were stacked on the
pallets and the defendant’s employees failed to clean up the
flour which was messed
on the floor. The duty to keep the floor clean
rests with the defendant’s employees, this was much conceded by
the defendant’s
witness, Mrs
Stride
. It was not an
onerous task for the defendant’s employees to clean the flour
which was on the floor. The shop was very busy
and under the
circumstances leaving the flour on the floor created a dangerous
hazard to the shoppers and to the plaintiff.
[23]
I was referred to various authorities on the slip and fall cases
[7]
by Mr
Niekerk
,
plaintiff’s counsel. Apposite to the facts herein, in
Ramonyai
v L P Malope Attorneys
,
[8]
the court held that the shop owner and its employees should have
foreseen the possibility of customers slipping and falling on
the
strewn maize meal and they had duty of care to take reasonable
precautions to warn customers of the strewn maize meal because
it
posed danger and further they had a duty to sweep the maize meal from
the aisle in order to prevent customers from stepping
and falling
because of it.
[24]
The incident herein was caused by the sole negligence of the
defendant and its employees because
they failed to keep the floor
free of hazards, by cleaning the flour on the floor. Although the
defendant pleaded contributory
negligence, but Mr
Jooste
did
not press for such and accepted that on the evidence herein there is
no scope for apportionment.
[25]
With regard to the issue of costs, there is no reason why the general
rule namely, that the costs
follow the results should not be applied.
[26]
In the circumstances, the following order is issued:
1.
The defendant is declared to be liable to the plaintiff for such
damages as a result of her
fall on 3 September 2020 at the
defendant’s premises at Cleary Park Shopping Mall, Gqeberha as
may be proven.
2.
The defendant is ordered to pay the plaintiff’s costs of the
merits.
N
GQAMANA
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
for the Plaintiff
:
Mr W D Niekerk
Instructed
by
: Langson & Associates
Attorneys
Gqeberha
Counsel
for the Defendant :
Mr P E Jooste
Instructed
by
: Swarts Attorneys
Gqeberha
Date
heard
: 26 April 2022
Date
judgment delivered :
5 May 2022
[1]
Main
Index; p 6 paras 4 and 6 of the particulars of claim.
[2]
2003
1 SA 389 (SCA) 395
[3]
[1998]
2 All SA 186
(W) at 200 d – f.
[4]
[2021]
2 All SA 457
(WCC) at par [60].
[5]
2004
(6) SA 211 (ECD).
[6]
1966
(2) SA 428
(A) at 430E.
[7]
Gordon
v Da Marta
1969 (3) SA 285
(A),
Ramonyai
v LP Molope Attorneys
[2014] JOL 32399
(GJ),
Avonmore
Supermarket CC v Venter
2014 (5) SA 399
(SCA) and
Ngubeni
v South African Transport Services
1991 (1) SA 756 (A).
[8]
At
para [59].