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[2021] ZASCA 125
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Pick 'n Pay Retailers (Pty) Ltd v Pillay (900/2020) [2021] ZASCA 125 (29 September 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
No: 900/2020
In
the matter between:
PICK
’N PAY RETAILERS (PTY)
LTD APPELLANT
and
CHERYLENE
SARAH
PILLAY RESPONDENT
Neutral
citation:
Pick ’n Pay Retailers (Pty) Ltd v
Pillay
(900/2020)
[2021] ZASCA 125
(29 September 2021)
Coram:
NAVSA
ADP, MOCUMIE, MAKGOKA,
SCHIPPERS and GORVEN JJA
Heard:
6
September 2021
Delivered:
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 10h30 on 29 September 2021.
Summary:
Negligence
– foreseeability of harm – failure to guard against –
shopper injured when struck by automated boom
gate – exit of
parking area frequently used by shoppers at shopping centre –
after incident certain safety measures
implemented – shopping
centre owner negligent.
ORDER
On
appeal from:
KwaZulu-Natal Division of the High Court,
Pietermaritzburg (Poyo-Dlwati J and Govindasamy AJ sitting as court
of appeal):
The
appeal is dismissed with costs.
JUDGMENT
Schippers
JA (Navsa ADP, Mocumie, Makgoka,
and Gorven
JJA Concurring
):
[1] The
issue in this appeal, which is before us with the leave of this
Court, is whether the appellant, Pick ’n
Pay Retailers (Pty)
Ltd (the defendant), was negligent in the operation of an automated
Centurion Sector boom gate (the boom) controlling
the exit of
vehicles from a parking area for persons with special needs and
parents with small children at Pick ’n Pay Hypermarket
in
Durban North (the shopping centre). The respondent, Ms Cherylene
Pillay (the plaintiff), was struck on her head by the boom
as it
descended from a vertical position.
[2] The
basic facts are uncontroversial. The boom consists of a three-metre
aluminium pole painted in white and
red, which is fairly prominent.
The pole weighs 2.4 kg. The box containing the mechanism of the boom
is bright yellow and plainly
visible. The boom is located on a
sidewalk, directly opposite an entrance to the shopping centre.
Directly adjacent to the entrance
is a pedestrian sidewalk all along
the building, running parallel to the road in respect of which the
boom controls egress. There
are bollards between the road and the
sidewalk, to discourage pedestrians from walking in the road. At the
entrance to the shopping
centre opposite the boom, for a short
distance, the bollards are joined by chains to prevent pedestrians
from walking directly
under the boom in its vertical position.
[3] On
10 December 2015 the plaintiff and her colleague, Ms Geraldine Leach,
had finished shopping at the hypermarket
and were walking on the road
towards the parking area to Ms Leach’s car. They were engaged
in conversation. The plaintiff
was in a hurry and did not pay
attention to her surroundings. She looked straight ahead. She did not
see the boom in the vertical
position and said that had she seen it,
she would not have walked under it.
[4] The
boom descended and struck both the plaintiff and Ms Leach. The
plaintiff sustained an axial impact type
of injury to her head, was
disoriented and suffered concussion. She was hospitalised on two
separate occasions, once in 2015 and
then in 2016. She was diagnosed
as suffering from moderate concussion and sustained a strain-sprain
injury to her cervical spine.
The plaintiff had to undergo
physiotherapy and received pain medication for cervical neck spasm.
Due to the injury the plaintiff
may continue to suffer episodes of
neck spasm and headache on a regular basis which would require pain
relief and physiotherapy.
Ms Leach also sustained an injury in the
region of her eye, which had caused bleeding.
[5] The
plaintiff instituted proceedings against the defendant in the Durban
Magistrate’s Court. In the particulars
of claim she alleged
that the incident was caused by the sole negligence of the defendant.
The asserted grounds of negligence were
as follows. The boom was
positioned immediately adjacent to a popular pedestrian walkway. Its
descent mechanism operated without
due regard to the presence of
pedestrians and there was no warning sign or sound to alert
pedestrians to its operating danger.
The defendant should reasonably
have foreseen the possibility that the boom could cause injury to
persons frequenting the shopping
centre, and failed to take steps to
guard against such occurrence.
[6] These
grounds of negligence were denied in the plea. The defendant alleged
that it had implemented and maintained
reasonable systems to ensure
that the parking area was clear of obstacles and hazards, which would
render it unsafe for the public.
In the event that the plaintiff
established that the defendant, its employees or agents were
negligent as alleged, the defendant
denied that such negligence
caused the incident. Alternatively, the defendant pleaded that the
incident occurred as a result of
contributory negligence on the part
of the plaintiff and the defendant. The defendant also alleged that a
tacit agreement had been
concluded between the parties that it would
not be held liable for any loss or damage. This defence was based on
what the defendant
said were prominent notices informing the public
that they entered the shopping centre at their own risk.
[7] The
magistrate’s court dismissed the plaintiff’s claim. It
concluded that the plaintiff had not
proved that she had been injured
by the boom or that the defendant had been negligent. The court also
found that the notices disclaiming
liability for loss or injury,
prominently displayed at the shopping centre, constituted a tacit
agreement between the parties which
absolved the defendant from
liability. The defendant, advisedly, did not persist in this defence
on appeal to this Court.
[8] An
appeal to the KwaZulu-Natal Division of the High Court,
Pietermaritzburg (Poyo-Dlwati J and Govindasamy
AJ), succeeded with
costs. The high court found that the defendant should have foreseen
the possibility of harm. It was not uncommon
for shoppers to walk on
the road right next to the boom, instead of using the pedestrian
walkway. Indeed, this was the route of
choice for shoppers to get to
their vehicles. They would then walk under the boom when it was in
the raised position, instead of
walking safely past it.
[9] The
high court found that the risk of harm presented by the boom was
reasonably foreseeable. Shoppers could
be struck by the boom which
would automatically and unexpectedly descend. The court concluded
that the plaintiff had been inattentive;
that she had failed to
observe or pay proper attention to the boom; and that she could have
avoided it. The plaintiff was thus
contributorily negligent. The high
court set aside the magistrate’s order and replaced it with an
order directing the defendant
to pay 60% of the plaintiff’s
proved or agreed damages.
[10] Before
us the argument was confined. Counsel for the defendant conceded that
the plaintiff had established
that a reasonable person in the
position of the defendant would have foreseen the reasonable
possibility of the boom descending
and striking a person. This
concession was rightly made. The plaintiff sustained an injury at a
busy shopping centre with a large
parking area. Ms Lerina Coles, the
shopping centre manager, conceded in evidence that shoppers with
trolleys usually walked on
the same section of road where the boom
was in operation and where the plaintiff had been injured; that there
was no warning sign
in that vicinity drawing attention to the danger
of the boom; and that the route taken by the plaintiff and Ms Leach
to get to
the parking area was the route of choice for shoppers.
[11] What
is more, in September 2015, about three months before the incident,
the boom had descended unexpectedly
and struck a person, breaking the
frame of his glasses. Fortunately, he sustained no injuries. As a
result of that incident, a
prominent four-sided warning sign stating,
‘CAUTION BOOM OVERHEAD’ was erected at the entrance to
the shopping centre
and next to the yellow box of the boom, so that
persons approaching the boom from either direction would be alerted
to it. The
word ‘CAUTION’ is shown in red lettering
against a white background and below it, the words ‘BOOM
OVERHEAD’
appear in white lettering against a red background.
These signs however had not been erected when the plaintiff was
injured. Significantly,
Ms Coles testified that the erection of the
sign had no effect on pedestrian traffic patterns.
[12] Although
the risk of the boom descending and striking a person was reasonably
foreseeable, counsel for the
defendant submitted that the plaintiff
had not proved that the defendant was negligent. The risk of injury
was negligible, so it
was submitted, because the impact of being
struck by the boom was equivalent to a ‘pat on the shoulder’.
Put differently,
counsel on behalf of the defendant submitted that a
reasonable person in the position of the defendant would not have
foreseen
the possibility of injury being caused. In this regard
emphasis was placed on the lightweight aluminium material and that
the boom
was designed to reverse upon touching an obstacle. This is
an aspect explored further, later in this judgment, when the expert
evidence is scrutinised.
[13]
In
Kruger v
Coetzee
[1]
Holmes JA formulated the test for negligence as follows:
‘
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.’
[14]
In
Sea
Harvest Corporation
[2]
Scott JA stated that dividing the issue of negligence into various
stages, however useful, was no more than an aid or guideline
in
resolving the issue: in the final analysis the true criterion for
determining negligence was whether in the particular circumstances
the conduct complained of fell short of the standard of the
reasonable person.
[3]
There is
no universally applicable formula which would prove to be appropriate
in every case.
[4]
[15]
In
the light of recent authorities, J R Midgley and J C van der Walt in
Lawsa
have made the following observation:
[5]
‘
When
assessing negligence, the focus appears to have shifted from the
foreseeability and preventability formulation of the test
to the
actual standard: conduct associated with a reasonable person. The
Kruger v Coetzee
test, or any modification thereof, has been relegated to a formula or
guide that does not require strict adherence. It is merely
a method
for determining the reasonable person standard, which is why courts
are free to assume foreseeability and focus on whether
the defendant
took the appropriate steps that were expected of him or her.’
[16] Applied
to the present case, the question is thus whether in the particular
circumstances, the defendant took
appropriate steps to avoid injury
to pedestrians. In support of the argument that the risk of injury
was negligible, the defendant’s
counsel relied on the evidence
of Mr Shalendra Parbhoo, the project manager (formerly a senior
technician) of the company which
had installed and serviced the boom.
He testified that it was likely that he would have tested the
operation of the boom when it
was installed in 2012.
[17] At
the entry to the parking area, the operation of the boom was remotely
controlled by a security guard, who
would open it. A metal sensing
loop installed in the roadway underneath the boom would detect the
presence of a vehicle. Upon the
lapse of five seconds (a default
factory setting), the boom would close only after a vehicle had
cleared the sensing area of the
loop. According to the factory
default settings generally used, it took two seconds for the boom to
move from the fully lowered
position to the fully raised position.
The boom would remain in the raised position for 15 to 20 seconds,
and return to the lowered
position in two seconds, covering a
distance of about three metres along a curve.
[18] At
the exit of the parking area, the position was different to entry.
The boom operated automatically. In
the exit direction the vehicle
would drive over a second metal sensing loop which caused the boom to
move to its raised position.
It would close only after metal had been
detected and then cleared from the metal-sensing safety loop beneath
the pole.
[19] When
the boom was installed Mr Parbhoo tested the operation of the boom as
it came down from the raised to
the lower position, using a vehicle
and his body. The boom has a built-in circuit that allows it to
change direction when it comes
into contact with a person or an
object. In the case of a vehicle, a sensor in the boom caused it to
stop and go back to its fully
open position. When he stood under the
boom as it was returning to the lower position, Mr Parbhoo conducted
two tests, standing
and facing the pole: the first with his shoulder;
and the second, with an outstretched arm under it. In the first test,
Mr Parbhoo
described the impact of the boom coming down on his
shoulder as ‘a firm pat on the shoulder’; the boom
stopped and
reverted to its fully open position. In the second test,
his arm was pushed down as it was not strong enough to stop the boom
but
when he used both arms, that was sufficient to reverse the
operation of the boom and caused it to return to the fully open
position.
[20] I
do not think that it can be inferred from these controlled tests –
with an expectation that the boom
will impact a person on a
particular part of his body – that the risk of injury to
members of the public was negligible,
and consequently that the
defendant was not required to take appropriate steps to protect them
from injury. It is striking that
Mr Parbhoo did not place his head or
any part of his face in the path of the boom. One’s head is
obviously less capable of
yielding than one’s shoulder. That
the defendant was required to take reasonable steps is grounded in
common sense and illustrated
by the facts of this very case.
[21] A
boom weighing 2.4 kg coming from it’s raised to its lowered
position over a distance of some three
metres in two seconds, and
which strikes a pedestrian without warning, is likely to cause
injury. In this case, it struck the plaintiff
and Ms Leach
simultaneously, causing the plaintiff to sustain a moderate to severe
injury with long-term effects. This is how the
plaintiff described
the incident:
‘
The
boom, I did not see it, I continued walking. Suddenly there was
almost a burning sensation, pain, it was sudden pain, and I
screamed
and I turned around and my friend also made some sort of murmur and
when I turned around Geraldine was bleeding from her
eye . . .
as I turned to my right to look at her, she was on the right of me, I
saw blood trickling down her face.’
[22] Then
there is the incident in September 2015 when the boom unexpectedly
struck a pedestrian, breaking the
frame of his glasses. That incident
too, could have resulted in serious injury, for example, if the
lenses of the glasses had been
broken. The only step taken after the
September 2015 incident was to order and wait for the warning sign.
So, pedestrians were
not protected any more than they had been when
the incident occurred. Since there was a person operating the boom
for entry to
the parking area, reasonable steps would at least have
required that a person operate it at the exit while the warning sign
was
being manufactured.
[23] The
fact that the path taken by the plaintiff was the route of choice for
shoppers with their trolleys, cannot
be overemphasised. Mr Parbhoo
said that a metal trolley would activate the boom, and thus move it
to its fully raised position.
He had tested this with a sheet of
metal, roughly the size of an A4 book. There obviously was no vehicle
near the boom when it
struck the plaintiff and Ms Leach. It is
inevitable that a trolley would activate the boom and inattentive
pedestrians or those
engaging in conversation would be unaware of a
boom in a raised position for 15 to 20 seconds, particularly in the
absence of a
vehicle. The boom would then return to its lowered
position in two seconds, which is likely to cause injury to persons
in its path.
[24] It
is therefore not surprising that after the incident involving the
plaintiff, the vehicle-sensing loop at
the exit of the parking area
was decommissioned. Mr Parbhoo testified that the operation of the
boom at the exit was no longer
automated but remotely controlled by a
security guard, as was the case at the entrance to the parking area.
[25] The
defendant also had the speed of the rising or lowering of the boom
increased from two seconds to 4.6 seconds.
Mr Parbhoo conceded that
the slower speed of 4.6 seconds was much safer and would give a
person in its path an opportunity of avoiding
a slower descending
boom. The defendant would never have taken these steps if it
considered that the risk of injury to members
of the public was
negligible.
[26] That
the defendant appreciated that the risk of injury was significant, is
also illustrated by the fact that
it had taken steps to erect warning
signs after the September 2015 incident. The defendant recognised
that a warning had to be
given that was simple, immediate and
compelling. It would be read by members of the public and alert them
to the operation of the
boom. As stated, there was no warning sign
when the plaintiff was struck by the boom in December 2015.
[27]
For
these reasons, the defendant’s reliance on the Australian case
of
Livsey
,
[6]
was misplaced. In that case it was held that although the risk of
contact with a boom gate was foreseeable, it was difficult to
identify a significant risk of harm where the boom gate ascended upon
contact. Moreover, there was no evidence that the boom gate
descended
with such force as to cause injury.
[7]
As was said in
Kruger
v Coetzee
:
[8]
‘
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. Hence the futility, in general,
of seeking
guidance from the facts and results of other cases.’
[28] The
high court was correct to hold that in the particular circumstances,
the defendant’s conduct fell
short of the standard of the
reasonable person. In the result the appeal is dismissed with costs.
A
SCHIPPERS
JUDGE
OF APPEAL
APPEARANCES
For
appellant: A
J Boulle
Instructed
by: Barkers
Attorneys, La Lucia
Matsepes
Inc, Bloemfontein
For
respondent: J Marais
SC
Instructed
by: Mooney
Ford Attorneys, Durban
Honey
Attorneys, Bloemfontein
[1]
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430E-F.
[2]
Sea
Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage
(Pty) Ltd
and
Another
2000
(1) SA 827
(SCA);
[2000] 1 All SA 128
(A) para 21.
[3]
Sea
Harvest Corporation
fn 2 para 21;
Minister
of Safety and Security v Carmichele
2004 (2) BCLR 133
(SCA);
2004 (3) SA 305
(SCA) para 45.
[4]
Sea
Harvest Corporation
fn 2 para 22.
[5]
15
Lawsa
3 ed at 284 para 155.
[6]
Livsey
v Australian National Car Parks Pty Ltd
[2014] NSWDC 232.
[7]
Livsey
fn 6 para 31.
[8]
Footnote
1 at 430.