Checkers Supermarket v Lindsay (123/08) [2009] ZASCA 26; 2009 (4) SA 459 (SCA) ; [2009] 3 All SA 487 (SCA) (27 March 2009)

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[2009] ZASCA 26
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Checkers Supermarket v Lindsay (123/08) [2009] ZASCA 26; 2009 (4) SA 459 (SCA) ; [2009] 3 All SA 487 (SCA) (27 March 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 123/08
In
the matter between:
CHECKERS
SUPERMARKET
APPELLANT
v
ESME
LINDSAY
RESPONDENT
Neutral citation:
Checkers
Supermarket v Lindsay
(123/2008)
[2009] ZASCA
26
(27 March 2009).
Coram:
Navsa,
Brand et Mlambo JJA
Heard: 27 February 2009
Delivered: 27 March 2009
Summary: Negligence – what constitutes – customer
slipping on supermarket floor – cleaning system inadequate –
supermarket
negligent.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
High Court,
Natal Provincial Division (Van der Reyden J sitting as court of first
instance).
The following order is made:
‘
The appeal is dismissed with costs.’
______________________________________________________________
JUDGMENT
____________________________________
__________________________
MLAMBO
JA
( NAVSA, BRAND JJA CONCURRING)
[1] On 16 September 2005 the respondent was injured when
she slipped on a patch of oil and fell whilst shopping at the
appellant’s
supermarket at St John’s Avenue, Pine Town,
KwaZulu-Natal. She sued the appellant for damages in the
Pietermaritzburg High
Court alleging that her fall was attributable
to the appellant’s negligence. The matter came before Van der
Reyden J who, pursuant
to an agreement between the parties, ordered
in terms of uniform rule 33(4), that the trial first focus on the
issue of liability
and that quantum be stayed. At the conclusion of
the trial the high court ruled in favour of the respondent. See
Lindsay v Checkers Supermarket
2008 (4) SA 634
(N). This appeal against the judgment and order of
the high court is before us with the leave of that court.
[2] The appellant’s supermarket floor covers an area
of some 2971.72 square metres
1
consisting of 22 aisles. The respondent had entered the appellant’s
supermarket just before 18h00 to make certain purchases.
After she
had selected her purchases she walked towards a till point to pay,
and as she made her way past a fruit gondola she slipped
on an oily
substance on the floor, lost her balance and fell injuring herself.
After her fall, the appellant was attended to by
Mrs Sharleen
Gobichand, who at the time was a back administrative manager at the
supermarket. Mrs Gobichand’s evidence was
that when she arrived at
the area where the respondent had fallen she noticed an oil patch
around the respondent covering an area
she estimated to be between 45
to 48 cm and that it was still spreading. Throughout the respondent’s
ordeal, including the time
she was assisted and taken away, no
cleaner arrived at the scene. The fruit and vegetable section is a
known high risk area where
spillages which caused the floor to be
slippery, always occurred. It is common cause that the respondent’s
fall was the third
in approximately a year in that supermarket.
[3] The evidence adduced in the court below shows that
the appellant had awarded a cleaning contract to a company, Super
Care Cleaning
(Super Care). Super Care was responsible for cleaning
the entire supermarket before the store opened in the mornings. After
the
supermarket opened, from 9 am to 2 pm two Super Care cleaners
maintained the floors by sweeping, mopping and going up and down the

aisles checking for spillages. After 2 pm one cleaner was
responsible for minding the floor and aisles until the supermarket

closed. The appellant’s employees were instructed that when they
saw a spillage the area was to be delineated and a cleaner/s

summoned.
[4] The court below, after analyzing all the evidence
came to the conclusion that the system the appellant had in place on
the day
of the incident was inadequate to deal timeously with
hazardous spillages.
[5] In our law liability for negligence arises if it is
foreseen that there is a reasonable possibility of conduct causing
harm
to an innocent third party, and where there is an omission or
failure to take reasonable steps to guard against such occurrence.
2
The duty of a supermarket owner/keeper to persons entering its
supermarket at all times during trading hours is aptly espoused
by
Stegmann J
3
as follows:
‘
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 lengths of time, and that they will be discovered, and the
floor made safe, with reasonable
promptitude.’
[6] The issue is therefore whether, on the particular
facts of this matter, the appellant had in place a reasonably
adequate and
efficient system, in relation to discovering and
removing dangerous spillages on the supermarket’s floor, to
safeguard persons
who frequented the supermarket from harm. In other
words was harm to the respondent reasonably preventable.
4
[7] Properly considered the
res
ipsa loquitur
doctrine is irrelevant in this
matter to the issue that called for determination. The high court,
quite properly, posed the correct
question after considering the
evidence led: whether the appellant ‘had a proper system in place
to deal with promptitude with
spillages’.
5
It was thus unnecessary to engage in any discussion about the
res
ipsa loquitur
doctrine.
[8] The court below reasoned amongst others that
emphasis on the length of time the spillage remained undetected
without consideration
of the adequacy of the cleaning system was an
artificial and unrealistic test.
6
The court went further and
reasoned that the adequacy of the system had to be considered against
the number of cleaning staff allocated
to deal with spillages, the
floor area and number of shopping aisles. Moreover the court went on
to state that since experience
had shown that spillages do occur, the
system could only respond with promptitude if a cleaner was stationed
at the potential hazardous
zones. In this regard the high court
stated that
it was obviously impossible
for
one cleaner and six staff
members otherwise engaged to deal timeously with hazardous spillages
between 2 pm and 6 pm in a supermarket
of that size.
We
know, in this regard, that the respondent slipped on a spillage in
the fruit and vegetable section, a known high risk spillage
area, and
that there was no dedicated attention, in the appellant’s cleaning
system, to that section. The conclusion of the high
court, that the
appellant’s system was woefully inadequate, is also borne out by
the fact that no cleaner showed up throughout
the respondent’s
ordeal, at the section where she fell.
[9] The high court was correct in concluding that the
respondent’s fall was due to the negligence of the appellant on the
basis
that it did not have an adequate cleaning system in place that
was geared to discovering and responding with reasonable promptitude

to dangerous spillages whenever they occurred on the supermarket
floor. The findings of the high court are, in my view, beyond

reproach.
[10] The following order is made:
‘
The appeal is dismissed with costs.’
_________________
D MLAMBO
JUDGE OF APPEAL
APPEARANCES:
COUNSEL FOR APPELLANT: S R Mullins SC; H A de Beer
INSTRUCTED BY: Mooney Ford Attorneys;
Durban
CORRESPONDENT: Lovius-Block;
Bloemfontein
COUNSEL FOR RESPONDENT: R Seegobin SC; M G Chetty
INSTRUCTED BY: Jennifer Anthoo & Associates;
Pietermaritzburg
CORRESPONDENT: Honey Attorneys Inc; Bloemfontein
1
This evidence was received by this court pursuant to the grant of
the appellant’s application, to have the evidence admitted
on
appeal to correct evidence led in the court a quo that the floor
area was approximately 15.000 square metres.
2
Kruger v Coetzee
1966 (2) SA 428
(A) at 430E-G.
3
Probst v Pick ‘n Pay Retailers (Pty) Ltd
[1998] 2 All SA
186
(W) at 200F; See also
Brauns v Shoprite Checkers (Pty) Ltd
2004 (6) SA 211
(E) at 218B-D;
Gordon v Da Mata
1969 (3) SA
285
(A) at 289H.
4
Brauns v Shoprite Checkers
(supra) at 218D.
5
At 637G-F.
6
It is in any event abundantly clear that the spillage did not occur
moments before the incident in question.