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[2015] ZAFSHC 127
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Pienaar v Vukile Property Fund (A140/2014) [2015] ZAFSHC 127 (25 June 2015)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case No.:
A140/2014
In
the matter:
KAREN
PIENAAR
Appellant
and
VUKILE
PROPERTY FUND
Respondent
CORAM
:
VAN
ZYL
et
DAFFUE,
JJ
et
MIA,
AJ
JUDGMENT
BY
:
MIA
AJ
HEARD
ON
:
11
MAY 2015
DELIVERED
ON
:
25
JUNE 2015
MIA AJ:
[
1]
On 3 June 2011 the appellant, Mrs. Pienaar, went shopping at the
Bloem Centre (the Centre) in Bloemfontein during an extended
lunch
break. She moved between the levels of the shopping centre by using
the escalator. As she proceeded to the escalator to move
to another
level she slipped, fell and sustained injuries. She testified that
she slipped and fell when she stepped onto the porcelain
tiles which
were inserted among the travertine tiles in the area around the
escalator. Mrs. Pienaar claimed an amount of
R233, 188.96, from
Vukile Property Fund, the owner of the property. She alleged that
Vukile Property Fund failed in its duty to
keep the floor of the
Centre reasonably safe for the public using the Centre. Vukile
Property Fund (respondent) outsourced
the cleaning of the Centre to a
subcontractor who is not a party to these proceedings.
[2]
As a result of a separation of issues in terms of Rule 33(4) of the
Uniform Rules of Court, the Court a quo was called upon
only to
decide whether or not the respondent’s negligence was the cause
of the appellant's falling and injuring herself.
At the end of
the trial the Court a quo granted absolution from the instance. It is
against such order that the appellant
now appeals to the Full Bench
of this Court, with the leave of the Court
a
quo
.
[3]
It is trite that the
onus
of proving negligence on a balance of probabilities rests with the
plaintiff. (See
Arthur
v Bezuidenhout and Mieny
1962
(2) SA 566 (A)
at
574H and 576G;
Sardi
and Others v Standard and General Insurance Co Ltd
1977
(3) SA 776
(A)
at
780C - H and
Madyosi
and Another v SA Eagle Insurance Co Ltd
1990
(3) SA 442 (A)
at
444D - G.)
[4] Negligence on the
part of the respondent would be proved if it was clear that the
respondent ought reasonably to have foreseen
that the tiles
constituted a danger to the public when they became dirty and took no
steps to avert the danger by cleaning the
tiles or warning the public
of the danger. The appellant testified and called an architect, Mr
Andries Karel Stefanus Nel (Nel)
as her expert. The respondent called
the Centre manager Mrs. De Beer (De Beer).
[5]
The appellant’s case was that the travertine tiles were
replaced with smooth glazed porcelain tiles close to the escalator.
When the porcelain tiles became packed with dirt they lost their
anti-slip properties and became slippery. The respondent did not
deny
that the appellant slipped and fell. The respondent disputed that
appellant proved that the porcelain tiles were slippery
or slippery
on the day of the incident and caused her to fall. Further that
the appellant failed to show that the respondent
failed in its duty
to keep the floors clean and maintained so as to prevent harm from
occurring.
[6]
Nel was a professional architect practicing at NBA Studios at the
time of the trial in the Court
a quo
.
He testified that he had 36 years of experience as an architect
relating to shopping centres, malls and offices and specifically
in
forensic architecture. This entailed furnishing an opinion on
building disputes in the building industry and covered a wide
field
relating to contractual claims as well as injuries. Nel was
approached by appellant’s attorneys to investigate the
incident
and possible cause of the appellant falling due to the tile
flooring. Nel had regard to photographs and the appellant’s
version upon instruction from the appellant’s attorneys
regarding the fall. He also visited the Centre to inspect the
condition of the tiles generally and the tiles which were replaced.
[7] Nel found that the
99.9% of Centre was tiled with travertine tiles. In a few places the
tiles were replaced with porcelain tiles.
He expressed the view that
it was preferable for the damaged travertine tiles which were
replaced with porcelain tiles to be placed
in less conspicuous areas.
This was possible if travertine tiles were harvested from elsewhere
in the Centre with less public traffic
so as to ensure consistency of
the tiles in the high traffic public area around the escalator. There
were three tiles around the
escalator that were replaced with glazed
porcelain tiles. According to Nel the glazed porcelain tiles were not
as porous as the
travertine tiles. Dirt collected more readily on the
surface and the glazed porcelain tile became slippery when covered
with dirt.
In contrast the travertine tile allowed more dirt to
accumulate without causing the tiles to become slippery. The use of
this glazed
porcelain tile in a high traffic public area created a
dangerous situation according to Nel if the tiles were not clean.
[8] De Beer indicated
that the respondent contracted an independent contractor to clean the
floors of the Centre. The cleaning regime
entailed two elements.
In the evening the cleaning entailed that the Centre was swept and
the floor scrubbed with detergents
using automatic scrubbing
machines. During the day the evidence indicated that eight cleaners
were on duty with brooms to clean
the floors. De Beer testified that
she walked through the Centre at least two or three times per day
when she was in Bloemfontein
to check that personnel were doing what
was required of them and that all was in order in the Centre. During
these walks she would
address any problems she came across. On
the day the appellant fell she was on duty in Bloemfontein. In view
of the Centre
having at least 700 000 customers traversing the
Centre, the tiles became dirty and were constantly cleaned. She did
not previously
encounter incidents with customers falling in the
vicinity of the escalator where the appellant fell.
[9]
Having considered all this evidence, the Court
a
quo
found that the probabilities suggested
that the appellant was running as she was late. The appellant wore
smooth soled shoes as
described by De Beer who saw them when she took
off the appellant’s shoe at the appellant’s request. The
Court
a quo
accepted
De Beer’s evidence as she would not have known ordinarily that
the appellant had taken an early lunch break unless
the appellant had
informed her of this fact. The Court
a quo
was also not impressed by Nel as a witness as he did not offer any
scientific test regarding the cleaning of the floor. There was
no
evidence indicating how much of dirt the travertine tiles collected
or exactly how smooth or slippery they became in comparison
with the
glazed porcelain tiles. Nel was not a cleaning expert. De
Beer’s evidence indicated that the independent contractor
was
contracted since 2008 to render cleaning services. They had not
experienced any problems since 2008. De Beer also had insight
into
the security register on a regular basis to identify problems that
required attention and the register did not reflect any
incidents
occurring in the particular spot near the escalator.
[10]
The appellant’s case that the respondent was responsible for a
dangerous situation created by the act or omission of
an independent
contractor,
in casu
that a dangerous situation was created by the dirty tiles which
caused her to slip and caused her injury is not ordinarily provided
for in our law of delict. In
Chartaprops 16
(Pty) Ltd and Another v Silberman
[2008] ZASCA 115
;
2009
(1) SA 265
(SCA) at 269 Nugent JA referred to
Colonial
Mutual Life Assurance Society Ltd v MacDonald
which stated that
:
“
A
principal is liable for the acts of his agent where the agent is a
servant but not where the agent is a contractor, sub-contractor
or the servant of a contractor or sub-contractor.”
The
appellant elected to claim damages from the respondent who would
ordinarily not be liable for the negligent acts of the subcontractor
it engaged to clean the Centre.
[11]
However Nugent, JA, pointed out at 270-271 that;
“
A
defendant might nonetheless be liable for harm that arises from
negligent conduct on the part of an independent contractor but
where
that occurs the liability does not arise vicariously. It arises
instead from the breach of the defendant's own duty
(I use that
term to mean the obligation that arises when the reasonable
possibility of injury ought to be foreseen in accordance
with the
classic test for negligence articulated in Kruger v Coetzee).
It will arise where that duty that is
cast upon the defendant to take steps to guard against harm is
one that is capable of
being discharged only if the steps that are
required to guard against the harm are actually taken. The duty that
is cast upon a
defendant in those circumstances has been described
(in the context of English law) as a duty that is not capable of
being delegated:
'the performance of the duties, but not the
responsibility for that performance, can be delegated to another'.
Or as
it has been expressed on another occasion, it is 'a duty not
merely to take care, but a duty to provide that care is taken' so
that if care is not taken the duty is breached.
”
[12] In the present
matter the respondent’s liability would arise from the
breach of its duty to take reasonable steps
to prevent injury which
ought to have been foreseen. This is in accordance with the classic
test for negligence expressed in
Kruger v
Coetzee
1966(2) SA 428 (A) where Holmes
JA stated:
“
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.”
In
applying this test to the present matter it is evident that the
respondent took steps to guard against harm. The respondent appointed
a subcontractor to clean the premises and took steps to ensure that
the performance of the duty was undertaken and that the necessary
care was taken. This is clear from De Beer’s testimony which
shows what steps were taken by the respondent to ensure that
the
respondent met its duty to take care.
[13]
Since Nel was not a cleaning expert and had no knowledge of the
cleaning routine at the Centre, his evidence was not sufficient
to
show that the respondent had failed in its duty to take the necessary
care. Only the evidence of a cleaning expert could rebut
the
respondent’s evidence that the cleaning system employed by the
respondent was adequate. The “tongue tip test”
conducted
by Nel, as counsel for the respondent referred to it, was not
sufficient to indicate that the respondent did not take
reasonable
care. The test entailed Nel wetting his finger and running it along
the floor. This test was conducted a year later
and not on the day
the incident occurred. This was not an indication of the condition of
the floors on the day the appellant slipped
on the tiles. This test
has no scientific basis or any skill set required in relation to
cleaning the tiles. It is also not a reliable
indication that the
floors were not cleaned the night before the appellant slipped on the
tiles or that the floors were not kept
clean during the day by the
cleaners when the appellant slipped.
[14]
The evidence of De Beer that the respondent employed a
contractor to maintain and clean the floors; that she checked
on the
staff regularly by walking and inspecting the Centre and checked the
security book entries demonstrates the respondent’s
efforts to
execute its duty to take care. It is evident from De Beer’s
evidence that the respondent did what was required
to ensure that the
floor of the Centre was maintained in a condition that was reasonably
safe for customers. In applying
the test in
Kruger
v Coetzee
supra
,
one must be mindful of the fact that what is reasonable or which
reasonable steps ought to be taken in a given set of circumstances
would depend on the facts of the particular case. On the facts
of this matter it is clear that the respondent took all reasonable
steps to ensure that the tiles were clean and not slippery. The Court
a quo’s
finding
that the respondent did what was required of it and that it was not
necessary to do more than what it had done, is unassailable.
The
Court
a quo’s
finding that the appellant did not succeed in showing that the
respondent was negligent is in my view correct.
[15]
For
the
reasons above I am of the view that the appeal should fail. In view
hereof the costs should follow the cause.
[16] In the result the
following order is made.
1.
The appeal is
dismissed with costs.
______________
S.
C. MIA, AJ
I
concur.
______________
C.
VAN ZYL, J
I
concur.
_____________
J.P.
DAFFUE, J
On
behalf of the appellant: Adv. A Vorster
Instructed by:
Honey Attorneys
BLOEMFONTEIN
On
behalf of the respondent: Adv. S.J. Reinders
Instructed by:
McIntyre & Van Der
Post
BLOEMFONTEIN