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[2013] ZAECELLC 1
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Ascani v Vincent Family Pharmacy CC (EL1830/2011, ECD3564/11) [2013] ZAECELLC 1 (22 January 2013)
IN THE HIGH COURT OF
SOUTH AFRICA
(EAST LONDON CIRCUIT
LOCAL DIVISION)
Case No.:
EL1830/2011
ECD3564/11
Date heard: 31
October 2012
to 2 November 2012
Date delivered: 22
January 2013
In the matter
between:
MARGARET
LOUISE ASCANI
Plaintiff
and
VINCENT FAMILY
PHARMACY CC
Defendant
J U D G M E N T
DAMBUZA, J
:
This is a claim for
damages arising from injuries sustained by the plaintiff as a result
of falling whilst at defendant’s
premises, a pharmacy, located
within the Vincent Shopping Mall in East London. At this stage the
matter is before me for determination
of the merits only.
It is not in dispute
that on 17 May 2011, whilst at the Vincent Family Pharmacy, a
business conducted from Shop 12, Vincent Park
Shopping Mall,
Vincent, East London (the premises or the pharmacy) the plaintiff
fell, shortly after she had entered the premises.
In the Summons
the plaintiff alleges that she slipped on a wet floor surface,
resulting in the fall and consequent injuries.
It is the cause of
the fall that is in dispute in these proceedings. In the plea the
defendant admits that the plaintiff fell
whilst walking in the
premises. The defendant, however, denies that the floor on which
the plaintiff fell was wet and that she
fell as a result thereof.
The exact spot in the premises whereon the plaintiff fell is also in
dispute. It is common cause
that the shelves on which items on
sale at the pharmacy are kept are arranged in parallel rows, on the
floor, with passages or
aisles in between. According to the
plaintiff, she fell whilst walking along the third aisle, whilst the
defendant contends
that the plaintiff was walking down the second
aisle when she fell to the floor.
Two witnesses gave
evidence on behalf of the plaintiff; it was the plaintiff herself
and her partner (husband) Stanley Theunis
Joseph Van Zyl. Two
witnesses gave evidence on behalf of the defendant. They were both
employed by the defendant and were present
at the premises when the
plaintiff fell.
The plaintiff’s
evidence was that at about 9:15 in the morning on the day in
question she entered the defendant’s
premises and walked to
the centre aisle (the third aisle). She was going to the
prescription counter which was located at the
back of the premises.
When she was about two steps into the aisle, her right heel slipped
and she was propelled forward and
landed heavily on her right hand
side on the floor. As she lay on the floor she could feel with her
hand that the floor was
“damp”
. A staff member
came to her and, whilst trying to assist her, uttered the words
“oh
dear they have just washed the floors”.
There was also
another member of staff who came to her assistance, offering her a
pillow under her head. The ambulance was called
and the plaintiff
was taken to hospital. The plaintiff’s partner was also
called. The plaintiff was wearing low heeled
boots which were
tendered in evidence as exhibit “1”. The heel of each
shoe is 5.1cm high and the surface thereof
is 6cm². Both the
heel and the sole of the shoes are covered in a serrated
“rubber-like”
substance.
Stanley Theunis Joseph
Van Zyl, the plaintiff’s partner, testified that he was,
indeed, called to the pharmacy where the
plaintiff had fallen. He
went there in the company of his daughter who had just arrived for
holidays from Johannesburg. On
his arrival the paramedics were
already on the premises and were
“busy with”
the
plaintiff. The plaintiff was in
“the middle aisle”
,
about one third of the way down.
Natasha Smith was the
first witness to give evidence on behalf of the defendant. She had
been working at the pharmacy for almost
three years at the time of
the plaintiff’s fall. On the day in question she became aware
of the fall whilst standing near
a stand whereon food supplements on
sale are placed, some distance from where the plaintiff fell.
Having heard the noise, Smith
proceeded to where the plaintiff was
lying on the floor and was the first person to reach her. According
to her, this was in
the second aisle in the pharmacy. (It is common
cause that at the time there were five aisles in the pharmacy).
According to
Smith, although the floor had been washed or
“mopped”
about an hour before the plaintiff fell thereon, it was
“completely dry”
when she fell. Smith however
decided to feel it with her hand to assess if it was not wet.
Whilst she was with the plaintiff,
the plaintiff told her that her
husband would
“kill her”
as she had just hurt her
back when she fell a few days before. The plaintiff also said that
it was
“not the
fault of the pharmacy”
that
she had fallen; she (the plaintiff) had not been looking where she
was going. Smith continued sitting next to the plaintiff
on the
floor, comforting her, until the ambulance arrived, about half and
hour to an hour from the time that the plaintiff had
fallen. The
plaintiff was then taken to hospital.
Smith also gave evidence
on the procedure used at the pharmacy when cleaning the floor. Her
evidence was that the floor of the
pharmacy would be cleaned every
morning. The procedure used by staff members in cleaning the floor
was the same. Whoever would
be cleaning the floor would start from
the front; that being the main entrance to the pharmacy. They
would then proceed to
the first aisle, to the second until they
finished the five aisles in the pharmacy. They would then proceed
to the area where
food supplements were kept, and thereafter to the
dispensary. Whilst cleaning the floor, a warning sign would be
placed on
the floor of the aisle which was being cleaned and would
not be removed
“until the floor was dry”
.
The floor would be cleaned with plain water using a
“mop”
.
On the morning of the
plaintiff’s fall the floor had been cleaned by Heidi, another
employee at the pharmacy at the time.
Ordinarily it took one to one
and a half hours to clean the floor. When the plaintiff fell Heidi
was at
“the back”
of the premises, throwing away
the water after cleaning the floor. Smith confirmed that indeed the
“wet floor”
warning sign was not anywhere on the
floor of the pharmacy when the plaintiff fell; it had been removed
as the floor was dry.
According to Smith, the plaintiff never
suggested to her that she fell because the floor was either wet or
damp.
Joan Roy was the second
witness to testify on behalf of the defendant. She had been
working at the pharmacy for 15 years at
the time of the plaintiff’s
fall. Her evidence was that when she arrived at work, at about 8:20
on the morning in question
Heidi was cleaning the floor in the third
aisle of the pharmacy. Roy then went to stand at the front of the
shop between the
second and third aisle and assisted customers. She
had been standing there for a while when she heard a sound as the
plaintiff
fell to the floor. She rushed to the spot where the
plaintiff had fallen and when she arrived there, Smith was already
with
the plaintiff. On reaching the plaintiff Roy bent down on her
knees, with one hand on the floor as she wanted to assist in lifting
the plaintiff up, but the plaintiff told them to leave her where she
was. Whilst her hand touched the floor, she noted that
the floor
was dry. She heard the plaintiff tell Smith that her (plaintiff’s)
husband would kill her because
“she had just been to the
doctor two days before”
.
That is the evidence on
which I have to decide whether the defendant is liable for the
plaintiff’s fall.
Firstly, on the issue of
whether in this case the floor was wet when the plaintiff fell, and
if so, whether that was the cause
of the plaintiff’s fall, the
plaintiff testified firmly that it was. In my view her evidence has
a ring of truth in it.
As I have stated according to the plaintiff,
the first remark made by Smith, was that
“they (have) just
washed the floor
”. The fact that the floor had indeed
been washed prior to the plaintiff’s arrival lends credence to
the plaintiff’s
evidence. I can find no evidence that the
plaintiff could have known that the floor had been washed prior to
her arrival at
the pharmacy. Her evidence that she felt the floor
is consistent with what a reasonable person would have done on
hearing that
the floor had been washed prior to her fall.
I accept that the
plaintiff was hesitant in responding to some questions during
cross-examination and that at times her responses
were not clear;
but I did not gain the impression that hesitation on her part was
caused by
“fabricating”
responses to questions
asked of her. It rather seemed to me that she hesitated because she
either did not understand the questions
or was trying to recall how
exactly the incident unfolded. For example, she was asked whether
her foot slipped to the right
or left when she fell. She was
hesitant in responding and ultimately said:
“...no
straightforward... to the right”.
She was also asked if
she had a back
“condition”
at the time of her
fall. Her response was:
“not that I am aware of”
,
and thereafter she referred to an ankle injury which she had
sustained in June 2010. It was put to her, during
cross-examination,
that she was prone to falling and injuring
herself, but she was able to explain how satisfactorily, in my view,
she sustained
the ankle injury referred to and how the injury was
exacerbated by her assisting an elderly woman up the stairs in a
block of
flats. In this regard
Mr Dugmore
who appeared on
behalf of the defendant, agreed that the plaintiff’s evidence
in this regard accorded with records in his
possession regarding
physiotherapy treatment administered on the plaintiff. The
plaintiff’s response and demeanour when
it was put to her that
the defendant’s witnesses would testify that the floor was dry
was spontaneous and had a ring of
honest disbelief. She responded
thus:
“... the girl was sitting there, how can she say it
was not wet?”.
On the whole the plaintiff impressed me
as an honest and reliable witness.
On the other hand Smith
unsuccessfully attempted to distance herself from the comment
attributed to her, that she told the plaintiff
that
“they”
had just washed the floor. She could not explain, however, why
she found it necessary to feel with her hand whether the floor was
dry, when her evidence was that so much time had lapsed since the
floor was washed that
it could not have been wet
. Her
evidence was self contradictory in that she testified that the floor
had been
“washed”
an hour prior to the
plaintiff’s fall and therefore
“it was not necessary
to check whether it was wet”
; yet it was her evidence
that she felt with her hand whether the floor was wet. Her
explanation during cross-examination for
examination of the floor,
that it had been raining on that day and, on occasion, drops of
water from clothes of customers had
caused the floor of the pharmacy
to be wet was, in my view, an afterthought. (Emphasis added.)
Further Smith’s
evidence was that the plaintiff told her that a few days before she
had fallen and
“hurt her back”
was not consistent
with what had been put to the plaintiff. All that was asked of the
plaintiff was whether she had a
“back condition”
.
Equally it was not put to the plaintiff that she had told Smith she
had not been looking where she was going. In my view Smith
was a
particularly poor witness. Apart from the fact that her evidence
generally did not accord with the probabilities, she
contradicted
herself, avoided responding to some questions and, at times sought
to retract some of her evidence. I am not persuaded
by her
explanation that discrepancies in her responses were caused by lack
of sleep on the night preceding the first day of evidence.
I am
also not persuaded by the submission by
Mr Dugmore
that what
appeared as reluctance to respond to questions on the part of Smith
was caused by inability to understand the questions
that were put to
her. The questions were simple, in my view.
Roy’s evidence did
not add much value to the defendant’s case. She persisted in
her evidence that every inch of
the floor was dry when the plaintiff
fell because the floor would take 3 to 5 seconds to dry. It is
improbable that this estimate
of time was true for all instances of
the cleaning of the floor of the pharmacy. Her evidence that the
plaintiff told Smith
that she had been to the doctor a few days
before is not consistent with Smith’s evidence that the
plaintiff had said she
had hurt her back.
In their evidence, both
Smith and Roy were eager to refer to the shoes worn by the plaintiff
as a probable cause of the fall.
Yet there is no evidence that
either of them suggested to the plaintiff, on the day in question,
that the fall was or might
have been caused by the shoes she was
wearing. Roy’s evidence in this regard was that she saw the
plaintiff shoes on that
morning and, because she owned the same or
similar pair of shoes and had fallen whilst wearing them, she had
thought that they
were probably the cause of the fall. Yet she did
not share this explanation with the plaintiff when conversing with
her.
Of more significance is
the evidence given by both Smith and Roy on the procedure used when
washing the floor. Apart from the
sequence
followed by each
one of them when washing the floor, starting from the (front)
entrance, and thereafter to each of the aisles,
to the supplements
area and thereafter to the dispensary, there does not appear to have
been a standard or established
method
of cleaning the floor.
On the evidence before me the method used by each one of them, is
different from the other. Furthermore,
I agree with the submission
by
Mr Louw
who appeared on behalf of the plaintiff, that
their practice of removing the warning sign from aisle to aisle as
they proceeded
with the cleaning, was not an adequate warning to
customers of possible danger from the recently washed floor.
Perhaps the method
of moving the warning sign from aisle to aisle
might be more suited to bigger premises such as supermarkets with
long passages.
I also agree that a more appropriate method would
have been to leave the warning sign near the door where everyone
would probably
see it as they entered the pharmacy until the floor
was completely dry, or even to put more than one warning sign.
Of significance is Roy’s
evidence that she would, prior to removing the warning sign from
each aisle, first wave a cardboard
over the area which had been
washed, to ensure that it dried up, a step which did not feature in
Smith’s evidence. It
seems to me that this extra measure
would have been taken in recognition of the fact that the floor
could not be completely dry
from wiping with the same mop that had
been used in washing the floor. This confirms my view that the 3 to
5 seconds estimated
by Smith and Roy as the time for the floor to
dry completely cannot be accurate for every instance of washing. Of
additional
significance is Roy’s evidence that at some stage
subsequent to the plaintiff’s accident, the method of cleaning
the floor at the pharmacy was changed to using an additional dry mop
to ensure that the floor is wiped dry.
In the context of the
different methods that the pharmacy staff used when washing the
floor the fact that the person who cleaned
the floor on that morning
did not give evidence becomes significant. In my view, Heidi’s
evidence would have been more
appropriate for a proper assessment of
the condition of the floor at the time of the plaintiff’s
fall.
In
Kruger
v Coetzee
1
Holmes
JA held that:
“
For the purposes of liability
culpa
arises if-
A
diligens paterfamilias
in
the position of the defendant-
would foresee the reasonable
possibility of his conduct injuring another in his person or
property and causing him patrimonial
loss; and
would take reasonable steps to guard
against such occurrences; and
the defendant failed to take such
steps.
This has 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. 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.”
I am satisfied that the
defendant should have foreseen that the washing of the floor could
result in an injury to customers that
came into the pharmacy. The
defendant could have taken reasonable and necessary precautionary
steps to warn members of the public
of possible danger resulting
from the washing of the floor. Such measures would be placing the
warning sign near the entrance
where customers could easily see it
and not remove the sign until the floor was dry. The floor could
also have been washed at
the end of the previous business day. The
defendant failed to take these steps and precautions.
At the end of the
plaintiff’s case an application for absolution from the
instance was brought on behalf of the defendant.
The basis for the
application was that no evidence had been led to the effect that the
condition of the floor was as pleaded
in the summons. The plaintiff
pleaded, in the summons
,
that she slipped
“on
the wet floor surface”
.
As I have stated, her evidence was that as she lay on the floor she
could feel with her hand that the floor was
“damp”
.
The submission on behalf of the defendant was that the plaintiff
had not led any evidence to prove that the floor was wet and/or
“sufficiently
wet”
so
as to cause a fall. I dismissed the application. The distinction
between
“wet”
and
“damp”
,
in my view, could not sustain a submission that no court could
reasonably find for the plaintiff.
2
“Dampness”
is only a degree of
“wetness”
.
In the Shorter Oxford English Dictionary
3
the word
“damp”
is defined as
“slightly
wet; moist; permeated with moisture”
.
The submission was
repeated during argument after all the evidence had been led.
Mr
Dugmore
pointed out that the usual pleading in summons is that the floor was
“wet
and slippery”
and submitted that
,
to succeed in her claim
,
the plaintiff had to prove that the floor was wet and sufficiently
wet to cause a fall
.
In
this regard the defendant relied on
Camilleri
v Old Mutual Investment Group Investments (Pty) Ltd
4
in
which Cloete AJ cited, with approval, amongst others the following
passage in
Gilson
v Shoprite Checkers:
5
“
[20] .... At the risk of
stating the obvious, it must be remembered that the issue as to
whether or not there were adequate cleaning
facilities in place on
the day in question will only arise if the plaintiff has been able to
establish, on a balance of probabilities,
that
sufficient
quantities of dust had accumulated on the floor to cause it to be
slippery and that the defendant ought to have been aware of this
....”
I do not think that one
requires expert evidence to establish the difference in the
properties of dust and liquid and the obvious
consequences
therefrom. The comparison is misplaced in my view. Dust is
ordinarily expected to be present on uncovered surfaces
including
floors; such presence of dust is not necessarily hazardous or will
not ordinarily cause a fall. Hence one would need
to prove that the
extent to which dust had accumulated on a particular surface was
such as would not ordinarily be expected on
that (particular)
surface or in particular circumstances. The same cannot be said of
a wet floor, especially in a pharmacy where,
in my view, one would
ordinarily least expect a wet floor because of the nature of
business conducted there. One obviously expects
a higher incidence
of vulnerable persons in a pharmacy than, for example, in a
supermarket; and therefore the extent of duty
of care on the owner
of a pharmacy would commensurate.
In the result my order
is that:
The defendant is held
liable for such damages as the plaintiff will prove to have suffered
as a result of an injury sustained
by her when she fell at the
defendant’s pharmacy on 17 May 2011;
The defendants shall pay
the plaintiff’s costs of suit.
_________________________
N DAMBUZA
JUDGE OF THE HIGH
COURT
Appearances
For plaintiff:
Adv S.S.W. Louw
Instructed by Niehaus
McMahon Attorneys, East London
For defendant:
Adv A.G. Dugmore
Instructed by Bate Chubb
& Dickson Inc, East London
1
1966 (2) SA 428
(AD) at 430 E-G.
2
See Rule 39(6) of the Rules of Practice in the Superior Courts.
3
5
th
Edition.
4
An unreported judgment of the Western Cape High Court, Case No.
16484/2007; delivered on 13 November 2011.
5
An unreported judgment of the Western Cape High Court, Case No.
A69/2008; delivered on 25 August 2008.