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[2019] ZAKZDHC 10
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King v Arbour Town (Pty) Ltd and Another (9117/2015) [2019] ZAKZDHC 10 (13 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 9117/2015
In
the matter between:
FATIMA
KING
PLAINTIFF
and
ARBOUR
TOWN (PTY)
LTD
FIRST DEFENDANT
BLACK
GINGER 402 (PTY) LTD t/a
BRILLIANT
CLEANING
SECOND
DEFENDANT
J U D
G M E N T
Delivered
on: Thursday, 13 June 2019
Olsen
J
[1]
The plaintiff in this matter sues in her representative capacity as
the mother of
her minor daughter who was born on 7 May 2007.
The particulars of claim delivered on her behalf alleged that on 30
December
2010 the plaintiff’s daughter slipped on a pool of
water on the tiled floor of a toilet facility in the Galleria
Shopping
Centre, Amanzimtoti, and that a “head injury with
sequelae” resulted, for which she must be compensated.
[2]
The first defendant is the owner of the shopping centre. The
second defendant
is a cleaning company contracted to provide cleaning
services at the centre including in and around the ablution facility
within
which the accident occurred. The particulars of
claim advanced the case that one or the other of the defendants was,
or both of them were, negligent in relation to the event because they
failed to ensure that the floors of the facility were at
all times
dry and did not constitute a slipping hazard; because they failed to
warn members of the public of the presence of water
on the floor,
and/or cordon or close off the relevant area until the floor became
dry; because there were inadequate inspections
of the area to
ensure that the users of the facility were not placed in danger; and
because employees of one or the other of the
defendants who were
present on the day did not ensure that the floor was dry and not a
slipping hazard.
[3]
An order for the separation of issues was made. This judgment
concerns the issues
in the case other than the nature and extent of
injuries suffered by the child, and the quantum of damages, if any,
due in respect
thereof.
[4]
I will refer to the plaintiff’s daughter in this judgment using
that term, or
as “the child”.
[5]
On the day in question the plaintiff was at the shopping centre with
her daughter,
and in the company of her daughter’s aunt, a Ms
August. The child wanted to go to the toilet. All three
of them
went to the facility. The plaintiff took her daughter
into one stall and Ms August went into another. The latter
emerged
first and went across to a hand basin to wash her hands.
Whilst she was busy there the plaintiff and her daughter emerged
from
the stall they had occupied with the child moving towards the hand
basins about two paces ahead of her mother. She then
fell
forward and struck her head against the tiled edge of a protruding
corner of the wall adjacent to the basin at which Ms August
was
busy. This much of the events of that day proved uncontentious
during the trial.
[6]
The essential features of the layout of the ablution facility were
depicted in a series
of photographs handed in by consent. They
show the position of electric air dryers provided for the use of
patrons.
As is usual with these electrical devices, they were
placed at a distance from the wet area (i.e. the line of hand
basins).
In this case each of them was on a wall behind the
hand basins so that the user would have to turn away from the hand
basins with
wet hands to approach the dryer. The proposition
that this layout would or might cause drops or droplets of water to
fall
to the floor between the hand basins and the dryers was not
questioned by any of the witnesses.
[7]
The first question to be considered is the mechanism of the child’s
fall.
According to the plaintiff she did not see whether the
floor was wet or dry when she was inside the ablution facility.
She
accepted the proposition that had there been a pool of water on
the floor she would have seen it. She said that her daughter
was at the time wearing shoes which had a non-slip sole.
Although her evidence was not perfectly clear on this issue the
impression I gained was that the sole of the shoe had a rippled
texture.
[8]
Ms August confirmed in evidence that she did not see any pool of
water. What
she saw, she said, were “droplets” on
the floor but she made it clear that the floor was not “soaking
wet”.
She did not see these droplets until the incident
occurred. As she put it she noticed them “as the reason
why
[the child] fell”. At the end of her evidence it was
not clear to me exactly what Ms August was saying about the extent
of
distribution of droplets of the floor. She had mentioned in
evidence that at the time that they entered a cleaner was
not present
in the ablution facility, but that one entered the facility as soon
as the fall had occurred, attracted presumably
by the crying out of
the plaintiff and perhaps also by the crying of the child. In
response to a question from the court
she stated that she was not
saying that there were so many “droplets” on the floor
that you could say that the cleaner
had not done her job of drying
the floor. That observation, as well as Ms August’s
choice of the word “droplets”
to describe what I think
must have been spots of water on the floor, do not in my view support
the plaintiff’s case that
the child slipped on water.
[9]
The child was only three and a half years of age on the day in
question. It
is well known that small children sometimes fall
without that necessarily being caused by any obstacle or a slippery
surface.
Small children do not keep their footing as well as
adults for want of fully developed upper body control. Although
the plaintiff
said in evidence that the child “slipped”
she was unable to give a description of the mechanism of the fall
which persuaded
me that it was more probable than not that the child
had slipped on a slippery surface. Ms August had her back to
the child
at the time of the fall. She claimed to have seen the
child slipping in the mirror placed above the wash hand basin at
which
Ms August was busy. Whilst there was no evidence before
me that anyone had tested this proposition, it strikes me as
unlikely,
having regard to the photographs, that Ms August would have
been able to see in the mirror how precisely the child fell.
[10]
Each of the plaintiff and the first defendant called an expert to
give opinion evidence concerning
the floor in question. Each of
the experts tested the floor by wetting it to establish whether that
rendered the tiles slippery.
Mr Gregersen, who was called by
the plaintiff, said that he conducted the experiment by sprinkling a
good coating of water from
his water bottle onto the floor. He
found that it did not render the tiles slippery. The summary of
his evidence puts
it this way.
‘
Some
of the floor tiles were very shiny and although they appeared to be
slippery, when I splashed water on them and tried to cause
my shoe to
slip on the wet shiny tiles, they were not slippery and my shoe would
not slip on them.’
He
postulated that perhaps some sort of non-slip coating had been
applied to the tiles, subsequent to the event, to put them in
this
condition. That was mere speculation, and the evidence for the
defendants contradicted that proposition.
[11]
Mr Caramanus who was called by the first defendant delivered a report
pointing out that some
tiles are constructed in a way which renders
them unlikely to become slippery when wet. He also tested the tiles,
the precise specification
of which he was unable to establish.
He tested the area by wetting the tiles and, according to his
summary, ‘getting
various shoe types of different sole
materials to apply moving pressure as if walking’. The
tiles did not become slippery.
[12]
When he gave evidence Mr Gregersen, presumably pressed by the
evidence of the tests which both
he and Mr Caramanus had conducted,
and by Ms August’s description of a not significant
distribution of “droplets”
on the floor, ventured a
suggestion not canvassed in the summary of his evidence delivered to
the defendants. The theory
he advanced was that a child is very
light, and has small shoes, as a result of which there is a lower
co-efficient of friction
rendering it a possibility (he did not put
it higher than that) that very few drops in an area could cause a
small shoe to slide
very easily. This theory was not supported
by any calculations reflecting a comparison of co-efficients of
friction generated
under the soles of the feet of adults and children
respectively. I do not regard this theory as having any value
in the adjudication
of this case. For what it is worth, my
sense is that the force generated by a body of a small light child is
applied on a
very much smaller contact area under the child’s
small feet than is the force imposed by the heavier body of an adult
with
larger feet. It is not perfectly obvious to me that the
friction for, say, every square centimetre of the underside of a
child’s shoe will be markedly different to the friction per
square centimetre generated between the sole of an adult’s
foot
and the floor. One would think that, given a three and a half year
old child’s lesser weight, the child does not require
the same
overall friction force underneath the soles of her shoes as an adult
would require, in order to keep her footing.
[12]
I reach the conclusion that the plaintiff has not established that
her daughter fell because
she slipped on a wet floor.
[13]
I should say something about my findings with regards to negligence,
upon the assumption that
the conclusion just stated is incorrect.
[14]
It is convenient first to examine the case against the second
defendant. Counsel’s
argument for the proposition that
the second defendant was negligent was advanced with difficulty
because of Ms August’s
description of what I will for the sake
of convenience call the “wetness” of the floor as
(a)
being comprised of “droplets”
(b)
not present in such quantities as to suggest that the cleaner had not
done her job of drying
the floor.
[15]
Counsel conceded that it could not be argued that the cleaner
responsible for the female toilet
in the ablution facilities had to
follow each user from the hand basin to the hand dryer, mopping up
any water droplets, as it
were on the heels of each patron as she
turned to the hand dryer.
[16]
Mr Mntambo was a shift supervisor employed by the second defendant,
and on duty at the material
time. He described the ablution
facilities in question. The female toilet is off a short
L-shaped passage which is
also used to give access to the male toilet
facilities, the paraplegic facilities and what is called the “baby
room”.
Mr Mntambo informed the court that for cleaning
purposes the building is divided into zones to which trained workers
are allocated.
The toilet facilities in question were at the
time allocated a male and a female cleaner. The latter had the
responsibility
of looking after the baby room and the female toilet
facility, and the two cleaners shared responsibility for the common
passage.
It was not argued that this allocation of resources
was unreasonable. Mr Mntambo pointed out that the cleaners
allocated
to these facilities do not wash the floors whilst the
shopping centre is open. Whilst the shopping centre is open and
the
facilities are open for use, a cleaner’s duty as far as the
floors are concerned is to dry any spots of water on the floor
using
a dry mop. Patrons do not have to cross floors wetted by a cleaning
process.
[17]
Mr Mntambo was able from the records to identify the cleaner who was
responsible for the female
toilet area on this occasion. He had
no complaints regarding her work at the time. (She is no longer
employed by the second
defendant.) As supervisor he walked the
mall on a regular basis ensuring that the necessary work was being
done properly.
[18]
Counsel for the plaintiff argued that signs should have been put up
warning of a wet floor.
That submission rests upon a prior
finding that in fact the floor was in such a condition as called for
the placement of a warning
sign. The opinion evidence tendered
by both parties establishes that the floor is not slippery when wet.
Ms August’s
evidence establishes that the floor could not be
described as wet. And one should not overlook the fact that it
is counter-productive
to put up warning signs when there is nothing
to warn against, as that is likely to contribute to a reduction in
the level of significance
the public attaches to such signs.
[19]
I conclude that if the plaintiff’s daughter did slip on one or
more of the droplets of
water described by Ms August, that was an
unfortunate accident not caused by any negligence on the part of the
cleaner employed
by the second defendant, or by the second defendant
in performing its management of the cleaning of the building.
[20]
Counsel for the plaintiff conceded at the outset of his argument that
he had difficulty advancing
any argument for the proposition that the
first defendant had been negligent. The first defendant
employed the second defendant
to undertake the cleaning of the
Galleria Shopping Centre. From the evidence before the court
the second defendant was a
well-established and reliable cleaning
company. It had been in business for some years. It still
is in business, and
is responsible for about 20 large shopping malls
at the present time.
[21]
Referring to
Chartaprop 16 (Pty) Limited and Another v Silberman
[2008] ZASCA 115
;
2009 (1) SA 265
(SCA) at paras 46 – 48, counsel for the
first defendant argued that there was no evidence to contradict the
proposition that
the first defendant, as owner of the centre, took
all reasonable steps required of it to guard against foreseeable harm
to the
public. I agree with that proposition.
[22]
I conclude that the plaintiff has failed to establish liability on
the part of either defendant.
In the case of the first
defendant I am satisfied that, even if the child did slip on a wet
floor, the occurrence was not caused
in any way by negligence on the
part of the first defendant.
I
accordingly make the following orders:
1.
The claim against the
first defendant is dismissed with costs.
2.
The second defendant is
granted absolution from the instance with costs.
OLSEN J
Date
of Hearing:
MONDAY, 20 MAY 2019;
TUESDAY, 21 MAY
2019; and
WEDNESDAY, 22 MAY
2019
Date
of Judgment:
THURSDAY, 13 JUNE
2019
For
the Plaintiff:
Mr W Shapiro
Instructed
by:
AC De Sousa Attorneys
Plaintiff’s
Attorneys
198 Tenth Avenue
Morningside
Durban…KZN
(Ref.:
AS/JM/PI/KIN 1/0001)
(Tel.: 031 –
303 5581)
(Email:
Aveena@ACDSattorneys/co.za
)
For
the 1
st
Defendant :
Mr KC
McIntosh
Instructed
by:
Messrs Askew &
Associates
First Defendant’s
Attorneys
20
th
Floor, Eagle Building
357/363
West Street / Dr Pixley Kasema Street
Durban
(Ref.: JW
Adrain/ESG/MUT4876)
(Tel.:
031 – 306 2401)
(Email:
Noelene@askew.co.za
)
For
the 2
nd
Defendant :
Ms CL Markram
Instructed
by:
Messrs Leon Swanepoel Attorneys
Second Defendant’s
Attorneys
111 General Alberts
Avenue
Randhart
Alberton
(Ref.: Mr
Swanepoel)
(Email:
leonslawchambers3@gmail.com
)
(Tel.: 011 –
864 8593)