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[2015] ZAKZDHC 79
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Govender v GMP Contract Cleaning CC (12544/2010) [2015] ZAKZDHC 79 (30 September 2015)
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IN
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 12544/2010
DATE:
30 SEPTEMBER 2015
SHARON
GOVENDER
.......................................................................................................
PLAINTIFF
And
GMP
CONTRACT CLEANING
CC
...............................................................................
DEFENDANT
JUDGEMENT
Delivered:
30 September 2015
MBATHA
J
[1]
The Plaintiff is Sharon Govender, an adult female of [1…….]
R……..] Road, Durban, KwaZulu-Natal.
The Defendant is
GMP Contract Cleaning CC, a Close Corporation incorporated in terms
of the Close Corporation Act[1] with its registered
address and
principal place of business at 4 Uve Road, Kloof, KwaZulu-Natal.
[2]
At the commencement of the trial and by
consent between the parties, the Court split the issues and ordered
that the merits of the
liability be determined first. In regard to
the merits the Court had to determine the question of wrongfulness
and if established,
the issue of fault (
culpa
).
In respect of
culpa
,
the Court had to determine if there was any contributory negligence
on the part of the Plaintiff.
[3]
It is common cause that:
·
the Plaintiff was employed as a team leader
by Nedbank and operated a branch, where most of the time she operated
alone in running
the bank;
·
Nobuhle Zondi “Nobuhle” was
employed by the Defendant to perform the Defendant’s aforesaid
obligation and acted
as an agent of the Defendant in furtherance of
the Defendant’s obligation;
·
the Defendant had been contracted to and
was under obligation to keep clean and safe, inter alia, the
tiled kitchen floor
of the Nedbank branch situated at the University
of KwaZulu-Natal, Durban;
·
Nobuhle was required to decant the liquid
detergent/soap from the larger bulk containers to smaller containers
for use in the cleaning
of the kitchen and the Nedbank branch of the
University of KwaZulu-Natal, Durban;
·
other than the Plaintiff and Nobuhle, no
other persons utilised the kitchen between 13h00 and 13h30 on 2
November 2010;
·
all the detergents utilised by the
Defendant at the premises were stored in the kitchen cupboard;
·
one of the liquid detergents had a pink
colour; and
·
there were no loose tiles in the kitchen,
nor were the tiles in the kitchen slippery;
·
the Defendant owed a duty of care to the
users of the kitchen at the Nedbank branch to ensure that the kitchen
was hazard free.
4.1
In summary, Sharon Govender’s evidence was that they had a
cleaner, Nobuhle, who came in twice a week at the bank to do
cleaning. She was employed by the Defendant. Her duties,
amongst others, included cleaning the floor. Her cleaning
materials were kept in the kitchen area of the Branch in five (5)
litre containers. One container had a whitish liquid, the
other
had a pink liquid and there was also another one with a greenish
liquid. These liquids were decanted in 500ml energade
bottles
for use by Nobuhle. Her evidence was further that on the 21
st
of June 2010, an inspection team visited her branch and identified
the decanting of cleaning materials into the energade bottles
as
hazardous. These observations were recorded in the Macrosafe
report which forms part of Bundle B of the documents before
Court.
Sharon’s evidence is that she conveyed this to Wendy
Kelly, Nobuhle’s supervisor as well as to Nobuhle.
4.2
The bank was divided in three (3) rooms, which were separated as
follows; the bank, the kitchenette and the storage area.
4.3
On the 2
nd
of November 2010, Sharon was on duty from 8h00 till 13h00. The
incident occurred at about 13h15 on that day. Nobuhle
was to
sweep, mop, dust and wash the dishes on that day. Upon her
arrival, Nobuhle had moved to the back area of the building.
Shortly before 13h00, Sharon left for the kitchen area, proceeded to
the DVR unit, used for monitoring the outside of the bank
building.
Before entering the kitchen, she had informed Nobuhle to clean her
workstation at the bank and then proceeded to
the kitchen. Upon
entering the kitchen, she noticed a bucket which was foamy liquid in
it and had a mop in it. Sharon
proceeded to the DVR system and
noticed that it had bird droppings whereupon she returned to take a
hygiene wipe from the wall.
At this place, she felt herself
slipping. She grabbed the handle of the kitchen cupboard,
the handle gave away.
She tried to stop herself from slipping
by grabbing a chair or stool, which also gave way. She tried to
reach for the DVR
unit, it slipped away too. Before she
realised what was happening, she felt a heavy metal blow at the back
of her head.
As she was falling down, she had noticed a
“pinkish” liquid when she tried to grab the stool.
[5]
After receiving the heavy blow on her head, she lost consciousness
and could not recall what happened thereafter. It is
her
evidence that the detergent on the floor caused her to fall.
Though she lost consciousness, she recalls that she had
screamed for
Nobuhle, that she was wet after falling on the floor, and was in
pain. She informed this Court that she was
familiar with the
place, there was no water on the floor and did not expect to find a
detergent on the floor. She was adamant
that though the bucket
was there, the cleaning had not yet taken place.
Bundle
A and B were handed in by consent. Bundle A relates to various
documents and bundle B depicts the scene of the incident
through
various photographs.
[6]
Her evidence was challenged under cross-examination in various
respects. I do not intend to repeat everything that was
posed
to her save that it elicited that she was adamant that no one else
could have used the pink liquid on that day except for
Nobuhle; that
she had reported that she had seen the pink liquid to her employers
after the accident; that no danger sign was used
by Nobuhle to
indicate that the floor was wet on that day or on any other day; that
the presence of the bucket indicated that Nobuhle
was just about to
start cleaning the floor; and that the detergents are stored in the
kitchen.
It
had also been suggested to her that the liquid before being diluted
with water, it emits a unmistakable strong smell, which ought
not to
have missed by her and that if it was spilled on the floor it loses
its pinkish colour.
[7]
Karen Pearce was called as a witness by the Plaintiff and she
described how they found her after falling, that she was lying
in
water and it was not apparent from where this water came from.
[8]
The Defendant’s sole member, Wendy Louise Kelly, gave evidence
on behalf of the Defendant. She confirmed that Nobuhle
Zondi
worked at the branch where the Plaintiff was injured. She had
been with them since the 1
st
of October 2007 until February 2008, when she was retrenched.
Wendy stated that the detergents are decanted into five (5)
litre
containers, in an undiluted form. The concentrate is pink in
colour when undiluted, but retains a pinkish shade when
diluted.
The five (5) litre containers are delivered to various premises where
she has the cleaning contract. Her evidence
was that if the
liquid dropped against a white area, it would show a light shade of
pink. She had no idea what Nobuhle used
to decant the liquid,
but the liquid had to be measured by use of a cup, before was poured
into the bucket. She was unaware
of the incident until she
received a letter of demand dated the 16
th
of May 2012.
[9]
The Cross-examination elicited that the Defendant was insured for
such eventualities. She also conceded to have received a call
from a
Plaintiff about Nobuhle’s decanting from energade bottles and
that it was in Nobuhle’s statement taken shortly
after the
incident that she had been informed of the incident relating to the
Plaintiff. That was the Defendant’s case.
10.1
There are safety reports compiled at the instance of the Plaintiff’s
employer regarding the safety of the
detergents. The reports are
specifically directed to the use of the detergents on the premises.
The reports categorically
state the unsafe use of energade bottles in
decanting the liquid from five (5) litre containers. This does
not require a
rocket scientist to realise that if this method was
used, there was a likelihood of the fluid spilling into the floor or
dripping
from the smaller bottles and creating a hazard. The
Defendant failed to adhere to such warnings, though it owed a duty of
care to the Plaintiff and other people who had access to the
premises.
10.2
The Plaintiff’s evidence remained unchallenged as to the
non-presence of any warning signs that were supposed
to be used by
the Defendant to indicate that the floor was wet. The bank is a
public place, irrespective where the incident
took place, care ought
to have been taken by the Defendant that the detergents it used did
not cause danger to the people using
the place.
10.3
Wendy Kelly, had no direct knowledge of what happened on the 2
nd
of November 2010, save for what is in Nobuhle’s statement.
However, her evidence is material in confirming the presence
of the
pink detergent amongst those that she supplied to this particular
branch, that it came in five (5) litre containers, that
it had to be
measured by use of a cup, that it retained the pink colour at every
stage when it was diluted and that it retained
a light pink shade
even when it was on the floor.
10.4
It also remained undisputed that the bucket was filled with foamy
water indicating that indeed the liquid detergent
had been put to the
water. The mop was already inside the bucket, indicating that
Nobuhle was ready to clean the floor.
The foam could only have
been generated by the detergent.
10.5
It is clear to me that there was presence of the slippery liquid on
the floor whether in its concentrated form
or diluted form. The
pink detergent could only have been used by Nobuhle, who already had
foamy water in the bucket.
[11]
It is my view that the use of smaller containers in decanting the
detergent, made it possible for it to spill on the floor.
Nobuhle, an employee of the Defendant failed to take reasonable steps
to remove the spill, as a result that it became a danger
to other
persons using the kitchen. She was also negligent in failing to
warn the Plaintiff of the presence of the liquid
on the floor, thus
creating a dangerous situation for other users.
[12]
The Defendant tried to persuade this Court that there was no pink
liquid detergent on the floor, though it was never disputed
that
Nobuhle’s bucket had foamy water in it, indicating the use of
such a detergent. The Defendant could not even suggest
what
else could have made her to fall, save to say that she ought to have
kept a proper lookout.
[13]
I was referred to various authorities by both parties, which I have
all considered. I am relying on the old authority,
Kruger
v
Coetzee
[2]
to establish if the Plaintiff has established the element of fault
where Holmes JA at page 430E-G held that:-
“
For
purpose 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 occurrences; and
(b)
The Defendant failed to take such
steps. This had been constantly stated by this Court for some
50 years. Requirement
(a) (ii) is sometimes overlooked.
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.”
[14]
I have applied these principles to the relevant facts of this case.
In applying the test for negligence as stated in
abovementioned
Kruger v Coetzee
judgment, it is my view that the
incident was reasonably foreseeable, that reasonable steps could have
been taken to prevent the
occurrence of the incident and that the
Defendant failed to take steps to prevent the occurrences of the
incident. On the
facts of the case, the Plaintiff has proved
the requirements of
culpa
.
The
Court further held that the Defendant’s legal duty having been
established, the next question which arose was whether
a reasonable
person, in the position of Defendant, would have:-
(i)
foreseen the possibility of his conduct leading to injury to others;
and
(ii)
would have taken reasonable steps in guarding against such injury.
[15]
The suggestion that the detergent became invisible when it was on the
tiles, suggesting that she would not have seen a pink
liquid at all,
is untenable in the light of the evidence of Wendy who said that even
when it was on the floor, having been diluted,
it still retained a
pinkish colour. It could only mean that the liquid that had dropped
on the floor was in its thickest form or
diluted form. Furthermore,
if this was within the knowledge of the Defendant that a dangerous
liquid becomes invisible when on
floor, it is an admission on its
own, that the Defendant was negligent in not warning the Plaintiff
and other users of the kitchen
of the dangerous situation created by
its use of this type of the detergent. It failed to do so.
The Defendant owed
a duty of care to the persons who had access to
the kitchen.
This
is in line with the judgment in
Avonmore
Supermarket v Venter
[3]
,
where the Court held that there can be no doubt that the reasonable
possibility of a person slipping and falling as a result of
a damp
floor was foreseeable. Such accordingly obliged the Defendant
to take such precautions as were reasonable to guard
against that
eventuality.
The
SCA held further that the cleaner ought to have ensured that the area
was dry before moving on.
[16]
There is no merit to the criticism of the Plaintiff’s
evidence. She gave her evidence in a clear and unequivocal
manner. She was a credible witness. There are no four (4)
versions to her evidence as alluded to by the Defendant.
The
Plaintiff, when she unexpectedly slipped, could not have been
expected to calculate the seconds, the distances of the chairs
etc.,
which I all find to be immaterial to the essence of the case.
It is clear that everything happened very fast.
Defendant’s
case was based on hearsay evidence of Nobuhle, who was not even
called as a witness about how she found the Plaintiff
on the floor.
Ms Kelly’s neglect to look at the inspection reports and act
upon showed her lack of care.
[17]
There is also no evidence to suggest that Nobuhle had started to mop
the floor when the Plaintiff moved to the kitchen.
The
Plaintiff could not have foreseen or expected to find the spills of
the pink detergent on the floor.
[18]
Consequently, it is my view that the Defendant failed to exercise
reasonable care in the execution of its duties and it failed
to take
reasonable steps to prevent harm occurring to other kitchen users.
The Defendant’s defence throughout was that
she failed to keep
a proper look out. I do not agree and find that there was no
contributory negligence on the Plaintiff’s
part.
[19]
In the result the order that I make is as follows:-
(a)
The Defendant is ordered to pay the Plaintiff such damages as either
agreed or as the Plaintiff may establish at trial.
(b)
The Defendant is ordered to pay the Plaintiff’s costs of
hearing to date.
MBATHA
J
Date
of hearing : 06 August 2015
Date
delivered : 30 September 2015
Appearances
:
For
the Applicant : Adv. A.C. Camp
Instructed
by : Berkowitz Cohen Wartski
Durban
For
the Respondents : Adv. G. Reddy
Instructed
by : Nolan Naicker & Company
c/o
Messenger King
Durban
[1]
Act
96 of 1984.
[2]
[1966]
2 All SA 428 (A).
[3]
2014
(5) SA 299
(SCA).