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2012
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[2012] ZAGPPHC 87
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Niemand v Old Mutual Investment Group Property Investment (Pty) Ltd (35421/2009) [2012] ZAGPPHC 87 (1 June 2012)
NOT REPORTABLE
IN
THE HIGH COURT OF THE REPUBLIC OF
SOUTH
AFRICA NORTH GAUTENG, PRETORIA
Case number 35421/2009
DATE:01/06/2012
In
the matter of
YVONNE
MAUD
NIEMAND
.............................................................................................
Plaintiff
and
OLD
MUTUAL INVESTMENT GROUP PROPERTY INVESTMENT (PTY) LTD
.......
Defendant
JUDGMENT
BAM
AJ
1.Th
e plaintiff claims damages from the defendant, the owner of a
shopping mall in Pretoria, commonly known as Menlyn Park Shopping
Centre, as a result of injuries sustained by the plaintiff when she
slipped and fell on a slippery substance on the floor of a
loading
bay on the premises. This trial, as agreed upon between the parties,
concerns the issue of liability of the defendant.
2.
plaintiffs case is based on delictual liability of the defendant. It
is alleged by the plaintiff that the defendant was negligent
in
failing to keep the relevant area properly clean, causing her to slip
on a spilled substance and fall, which resulted in the
plaintiff
sustaining certain injuries. The defendant's opposition to the claim
is twofold. Firstly it denies liability in that
it was not negligent
as alleged by the plaintiff, and secondly, that it did not act
wrongfully on the basis that notices of disclaimer
of liability were
displayed at all the public entrances and parking bays on the
premises.
3.
3.1An
inspection in loco was conducted upon request by counsel for the
applicant, Mr Vorster. Mr Ferreira SC for the defendant abided.
The
primary purpose of the inspection was to afford this Court the
opportunity to observe the area where the incident occurred
in order
to enable the Court to fully appreciate the surrounding circumstances
regarding the facts of the matter.
3.2The
following was observed by the Court, which observations were
consistent with what is depicted in the photographs of the area
that
formed part of the evidence contained in the bundles of documents,
before this Court, as agreed upon by the parties:
(i)
The loading zone where the incident occurred is an open area where
several delivery vehicles were parked at the time of the
inspection;
(ii)
The entrance to the loading zone faces a Northern direction. At the
time of the inspection, approximately 10h45, the sun shone
directly
into the loading zone.
(iii)
The surface of the loading zone is cement based;
(iv)
Between the left wall of the loading zone and the first parked
delivery vehicle a pedestrian can pass with ease;
(v)
At the back of the loading zone is a stair case consisting of about
twelve steps leading to a platform at the back of the loading
zone;
(vi)
From the platform access can be gained to the inside of the mall;
(vii)
A disclaimer notice is affixed to the wall behind the platform (the
specific wording of the notice will be referred to below);
(viii)
At one of the main entrances a similar disclaimer notice is affixed
to the wall next to the entrance.
3.2
To these observations Mr Ferreira added that disclaimer notices are
displayed at all eight
main entrances as well as the six parking
bay entrances. This was not conceded by Mr Vorster. It was stated by
Mr Ferreira that
the disclaimer notice, now affixed to the rear wall
of the loading zone, had not been there at the time of the incident.
Mr
Ferreira further pointed out that some or other construction was
presently in progress to the left (East), of the entrance to
the
loading zone. The area is cordoned off with some sort of black
covering. It was however pointed out by Mr Ferreira that the
said
construction had not been there at the time of the incident. Nothing
further was added by either counsel.
3.3
It is recorded that during the inspection certain remarks were
interchanged by counsel.
These remarks were informal and I was not
requested to take specific notice of same or to have it recorded. It
had nothing to do
with the aforesaid observations.
4.
The plaintiff, Yvonne Maud Niemand, testified. Her evidence can be
summarized as follows.
On 20 June 2006, at approximately 9hl5, the
plaintiff, a woman of 51 years, an employee of Stuttafords, a tenant
of the defendant
at the mall, entered the building through what is
known as a loading zone. At that stage she had been employed at
Stuttafords as
a beautician consultant for a period of approximately
two months. She was properly dressed as required by her employer and
wearing
standard walking shoes. After having walked a few paces,
crossing the floor of the loading zone in the direction of a stair
case
leading to a door granting access to the inside of the premises,
the plaintiff slipped on a spilled substance and fell. She did
not
observe the spillage beforehand. As a result of the fall she
sustained certain injuries. She was unable to get up on her own
accord and was assisted to get on her feet by a security guard,
apparently employed by Stuttafords. She only reported the incident
in
the afternoon due to work conditions. Later, the same day, she
investigated the area where she fell in order to determine what
the
spillage consisted of. She then discovered that the spillage, in the
diameter of plus-minus 15 centimeters, had a partly hardened
basis,
the top part felt slippery and had the appearance of vomit or spilled
ice-cream. Her clothes were also partly smeared with
the said
substance. She did not see any disclaimer notice like the one now
attached to the rear wall of the loading zone. She used
to enter the
premises through the loading zone as required by her employer. She
conceded having visited the mall as an ordinary
shopper before the
incident but denied having seen any disclaimer notice at the entrance
she used on that occasion.
5.
The defendant adduced the evidence of Mr Erens Mothlalu and Ms
Veronica Purdy. The former is an operational manager employed
by the
defendant. From his evidence it became clear that the defendant took
proper precautions regarding the cleaning of the mall
by inter alia
contracting an independent entity, Fidelity Supercare Cleaning (Pty)
Ltd, as cleaning contractor, of which the second
witness was the
regional manager. It was uncontested that inside the mall, at the
relevant time, 98 cleaners were employed, by
the cleaning contractor,
and tasked with cleaning the premises of spillages and the like. Any
spillage would be cleaned up within
ten minutes after having been
reported. At the loading bay, however, cleaning took place between
22h00 and 6h00, after normal business
hours. During the day, because
of the normal activities of off-loading, no continuous cleaning took
place. If however a spillage
is reported, it would also be cleaned
up, like inside the mall, within ten minutes after it has been
reported. The reporting of
spillages in the loading zone was
dependent on the observation of a security guard who attended to the
security situation outside
the building complex. The security guard,
who would pass the loading bay from time to time, had instructions to
report any spillage.
The reporting of spillages was further dependent
on any other person using the bay or being in the area at any given
time, which
persons could include members of the public, any person
involved with off-loading or dispatching and employees of tenants
entering
or exiting the building.
6.
The salient facts of this matter are as follows:
(i)The
plaintiff was employed by a tenant at the Menlyn mall, owned by the
defendant.
She used to enter the mall at a loading zone as
required by her employer. On 20 June 2006, at approximately 8h30 to
9hl5, the plaintiff
slipped on a substance on the floor of
the
loading zone. As a result she fell and injured herself. The plaintiff
was oblivious of the spillage.
(ii)
The floor of the loading zone is cement based and smooth. The loading
zone is primarily used by delivering vehicles. The said
area is also
used by other employees of divers
tenants to enter the building.
Employees of tenants have been forbidden by their employers to enter
the building through any of
the main public entrances. This is
well
known to, appreciated, and accepted by the defendant.
(iii)
The defendant contracted an independent contractor to attend to the
cleaning of the entire area of the mall, including the
loading zones.
It is a specific term of the cleaning
contract that any spillage,
wherever it may occur, has to be attended to and cleaned up within
ten minutes after it had been reported.
Failure to comply with this
term would
result in the contractor being visited by a substantial
pecuniary penalty. The defendant further established extensive means
to
ensure that the mall is kept clean of, amongst
others,
spillages of any kind. The said means included inspection tours
throughout the premises, referred to as walkabouts, conducted
by
members of defendant's own staff.
(iv)
The loading zone is a busy area throughout the day and is only
cleaned between 22h00 and 6h00. Any spillage, however, has to
be
attended to within ten minutes after having
been reported.
(v)
Inside the main shopping area specific employees are designated to
attend to, amongst others, any spillage that may occur. At
the
loading zone nobody was specifically
designated to attend to any
spillage that could occur in that area. Reporting of spillages of any
kind at the loading zones depended
upon a security guard patrolling
the outside
of the building who had instructions to report
spillages, members of the public passing by and employees of tenants
or other persons
who may be in the area where the spillage occurred.
(vi)
At all eight main public entrances to the mall, as well as the six
parking garages, defendant properly displayed clearly legible
disclaimer notices, roughly in the following
format but with the
same wording.
"The
Landlord of the Premises, or its Agents Are not Liable for any
Damages or Loss Which you May Sustain Of Whatsoever Nature
or From
Whatsoever Cause Arising, Including but Not Limited to Damage or Loss
Caused by Fire, Theft, Negligence Or of any Other
Cause/'
(vii)
On 20 June 2006, the day of the incident, no disclaimer notice was
affixed to either the entrance to the loading bay or the
rear wall of
the loading bay. The notice that was
observed by the Court during
the inspection was attached subsequent to the 20th June 2006.
(viii)
No written record of a report of any spillage at the loading bay was
discovered by the defendant. Reports of that nature,
prior to 20th
June 2006, were however discovered by
the defendant. No evidence
was adduced that the spillage the plaintiff had slipped on had been
reported or cleaned up.
(ix)
The spillage in question was slippery and consisted of a partly
hardened base and had the appearance of vomit or spilled ice
cream.
7.
In view of the fact that the appellant's case is based on delict, the
questions to be answered are whether wrongfulness and fault
(culpa)
had been proved by the plaintiff.
See
Randfontein Traditional Local Counsel v Absa Bank Ltd 2000(2) SA 1040
(W) at 1057 C-H and Administrates, Natal v Trust Bank
van Afrika Bpk
1979 (3) SA 824
(A) at 832H. It was submitted by Mr Ferreira that
although it is usually done the other way around, this Court should
first deal
with the question of negligence (culpa) and secondly with
the question of wrongfulness. The second issue concerns the
defendant's
defense of absence of wrongfulness, based on the
defendant's display of the disclaimer notices. This submission was
sound in the
circumstances and I found it expedient to consider the
said issues in that order.
8.
Pertaining to the issue of negligence, in my view the plaintiff was
not negligent at all. There
was no evidence indicative thereof
that the plaintiff could have avoided her fall.
Regarding
the question whether the defendant was negligent, as averred by the
plaintiff, Mr Ferreira referred to the reported matter
of Chartaprops
16 (Pty) Ltd and Another v Silberman
[2008] ZASCA 115
;
2009 (1) SA 265
SCA. In the said
matter it was held that a principal could not be held liable for
wrongs committed by an independent contractor,
or its employees,
contracted specifically for the purpose of keeping the property
clean, in failing to remove a spillage upon which
somebody slipped
and fell. Mr Ferreira submitted that the defendant could also not be
held to be vicariously liable for any fault
of the independent
contractor. The defendant, at all relevant times, acted reasonably in
that regard by specifically employing
the cleaning contractor.
9.
It was inter alia submitted by Mr Vorster that the evidence showed
that the defendant was, apart from the agreement it had with
the
independent cleaning contractor, aware of the lack of proper
monitoring and a cleaning system in place at the loading zone
during
day time, and, accordingly thatit was reasonably foreseable by the
defendant that somebody could get injured when a spillage
would not
be timeously observed and attended to. The defendant was therefore
negligent. In this regard Mr Vorster referred me to
Checkers
Supermarket v Lindsay
2009 (4) SA 459
(SCA).
10.
In order to decide whether the defendant was negligent as alleged by
the plaintiff, an objective reasonable test has to be applied
to the
facts. The relevant facts regarding this
issue are the following:
(i)
The defendant contracted an independent contractor in terms of a
specific contract to attend to the cleaning of the premises.
The
terms of the contract are comprehensive and clear. The relevant term
of the contract stipulates that cleaning of any reported
spillage had
to be done within ten minutes after the report thereof.
(ii)
Apart from the duties of the cleaning contractor in terms of the
contract, the defendant on its own took additional steps to
ensure
that cleaning up of the premises is monitored and controlled by its
own employees. In that regard I refer to the defendant's
employees
conducting walkabouts for that purposes and the defendant depending
on security guards and other people to report spillages.
(iii)The
defendant on its own evidence actively participated in, at least,
them monitoring of the premises and the cleaning up process.
(iv)
The spillage in question should have been cleaned up within ten
minutes of it being reported.
(v)
The spillage had apparently not been reported, or if it had been
reported, had been cleaned up within the required ten minutes,
or at
all.
11.
Taking into consideration the relevant facts and the arguments of
counsel, I am of the opinion that the defendant was in fact
negligent
in not taking reasonable steps to keep the loading zone properly
monitored and clean and in not ensuring the safety of
anybody
entering the area. I base my conclusion in this regard on the
following:
(i)
The defendant's own employees were actively involved in the cleaning
process in conducting walkabouts for purposes of checking
or
monitoring the premises. The defendant also tasked security guards to
assist in reporting, amongst others, spillages. Despite
the agreement
between the defendant and the cleaning contractor, the defendant did
therefore not delegate all responsibilities
pertaining to the
cleaning up of the mall to the contractor. The defendant clearly
reserved certain monitoring and
controlling
duties pertaining to the cleaning of the premises, or shared
obligations and duties in that regard with the contractor.
The
defendant, in being actively involved in the whole process in keeping
the premises clean, did not depend solely on the contractor.
(ii)
This is not a situation where the defendant is vicariously liable for
any wrong doings of the contractor. My conclusion regarding
defendant's negligence is based on defendant's
own conduct and
obligations.
(iii)
On the day of the incident, 20th June 2006, the spillage had not been
reported by anybody, or cleaned up, between the time
of the
plaintiff's fall at about 9h00 and later
the same day, apparently
during the afternoon, when plaintiff went to investigate the
spillage. The fact that the loading bay is
cleaned between 22h00 and
6h00, for practical
reasons, is of no consequence. The problem was
the spillage on the floor of the loading zone.
(iv)
Unlike the situation inside the mall, no specific person was
designated to check upon the cleanliness of the loading bay, more
specifically pertaining to possible spillages
during day time. To
depend on the observations of a passing security guard or other
people, to report any spillage, is clearly insufficient.
The fact
remains that no spillage or
removal thereof had indeed been
recorded on the specific day. If it had been reported and/or attended
to, one would have expected
some record or evidence thereof.
The
spillage was still there at the time the plaintiff went to
investigate the nature thereof during the afternoon. On the
probabilities
the only inference that can be drawn from
this
situation is that the floor of the loading zone was not properly
monitored, if at all.
(v)
The defendant was aware of, and appreciated and accepted the fact
that a substantial number of various categories of people,
including
employees of tenants, daily used the
parking bay for different
purposes. Accordingly the defendant was reasonably obliged, in the
circumstances, to have the loading
zone properly observed and cleaned
of
spillages, which it failed to do.
(vi)
The fact that a proper system was in place to keep the mall clean
from spillages, and that the loading zone was part of the
mall, do
not avail the defendant in circumstances.
The fact is that at the
loading zone the monitoring of the floor surface and cleaning up of
spillages were not properly attended
to.
(vii)
Although there is no evidence on record at what time the spillage had
occurred, and how it came to be on the floor, if the
location where
it was spilt is borne in mind, the
plaintiff's fall could have
been prevented if there had been proper monitoring and cleaning of
the area after 6h00. Proper monitoring
of the area, to my mind, would
have
constituted reasonable precautions to avoid injury to any
person.
(viii)
Proper means to ensure the safety of any pedestrian entering the
loading bay were clearly not employed by the defendant.
If the same
system pertaining to monitoring and
cleaning inside the mall had
been employed at the loading zone, the reasonable safety of anybody
entering the loading zone would
have been ensured.
(ix)
In the circumstances the defendant ought reasonably to have foreseen
that its failure to put a system into place at the loading
zone to
ensure that it was properly monitored and cleaned if and when
spillages occurred, could have caused damages to somebody.
The
defendant failed to take the reasonable steps to guard against such
occurrence. See Kruger v Coetzee 1966(2) SA 428 (A) at
430 E-H
12.
I now turn to the issue of wrongfulness. The defendant relies in this
regard on a defense that the plaintiff accepted the terms
of the
disclaimer when she entered the building, in
accordance with the
law stated in Durban's Water Wonderland (Pty) Ltd v Botha and Another
1999(1) SA 982 (SCA).
It
was argued by Mr Ferreira that the defendant had complied with all
requisites pertaining to the issue of disclaimer notices.
According
to Mr Ferreira the wording of the disclaimer notices, to which I have
alluded to above in par 6(iv), which notices were
properly displayed
at the relevant time at all eight public entrances and the six
parking bays of the mall, clearly stated that
the defendant would not
incur liability in respect of any injury or damage resulting from
negligence or otherwise. These terms,
Mr Ferreira argued, were
accepted by the plaintiff.
13.
The law pertaining to this issue, discussed in Durban's Water
Wonderland case, is, with respect, clear. The said decision re-states
the principle followed by our courts regarding the so-called ticket
coses. Anybody entering premises where disclaimer notices with
wording, as in this matter, are properly displayed, is subject to the
terms of the disclaimer notice. The fact that the disclaimer
notices,
displayed at all the public entrances, had not been read by any
specific person, would not be of any avail to anybody
entering the
building at those entrances.
14.
In this matter it was common cause that no disclaimer notice was
affixed to the rear wall of the loading zone, where it is presently
affixed, neither was any disclaimer notice affixed at the entrance to
the loading zone at the time of the incident. It was not
explained by
the defendant why disclaimer notices were not so affixed at the time,
and why, subsequent to the incident in question,
a disclaimer notice
has now been affixed to the rear wall. The inference to be drawn from
this state of affairs is that the defendant
realized that the loading
zone was not covered by the disclaimer notices at the public
entrances and the parking garages.
15.
It was common cause that the loading zone was daily used by people
who would not make use of any of the main entrances or the
parking
bays. It was never even suggested that any disclaimer notice at any
of the other entrances was visible from the loading
zone.
16.
The main question to be answered in this matter, pertaining to the
issue of exclusion of liability, is whether the display of
the
disclaimer notices at the eight main entrances and the six parking
bays, was sufficient and adequate in order to entitle the
defendant
to rely on the contents thereof and to claim that anybody entering
the loading zone, would also be subject to its terms.
The
defendant bore the onus in this regard. See Durban's Water Wonderland
at 991.
17.
The plaintiff conceded that she had previously entered the mall at
one of the main public entrances. She however stated that
she had
never been aware of any disclaimer notice or that she had read the
contents thereof. She could however not dispute that
the disclaimer
notices had been affixed at the entrances and the parking garages at
the time she visited the mall as an ordinary
shopper. The plaintiff
testified that she entered the mall at the loading zone, daily, for a
time period of two months prior to
the incident. Her husband used to
drop her at the loading zone each and every morning and would pick
her up in the afternoon. She
told the Court that she had not been
aware of any disclaimer notice at the loading zone at all.
18.
In my opinion, the defendant would have been entitled to rely in law
on the contents of the disclaimer notices if, at the time,
the
relevant notices had been displayed at the entrance of, or at least,
the rear wall of the loading zone, where such notice is
presently
displayed. In my opinion, to find that the plaintiff should have been
aware of a disclaimer because she should have read
the notice on a
previous occasion when she entered the mall through one of the main
entrances, would be totally unreasonable, unfair
and not justified in
the circumstances. The fact remains that the plaintiff, for
approximately two months before the incident,
whilst entering the
mall at the loading zone, had not been made aware of any disclaimer
notice.
19.
By not having displayed any disclaimer notice at the entrance to the
loading zone, or the rear wall, for that matter, at the
time in
question, creates the impression that the defendant did not consider
the loading zone a potential danger area on the same
basis as the
inside of the mall. This inference is also borne out by the evidence
that the loading zone, albeit for
practical
purposes, was not attended to, or monitored, on the same basis as the
inside of the mall to which the general public had
access. The
subsequent affixing of the disclaimer notice to the rear wall of the
loading zone further creates the impression that
the defendant,
belatedly, realized that the displaying of the disclaimer notices at
the public entrances was inadequate.
20.
The defendant was well aware of the fact that people were daily using
the loading zone. It is quite clear that the defendant
could not
reasonably have expected every person present at the loading zone at
any given time, including people casually involved
with off-loading,
to have known about the disclaimer notices displayed at the main
entrances or parking garages.
21.
Accordingly I find that the defendant's defense based on the
disclaimer notice should be rejected.
22.
The following order is made:
1.
The defendant is held liable for the damages to be proved by the
plaintiff allegedly sustained on 20 June 2006 at Menlyn Park
Shopping
Centre, Pretoria.
2.
Costs reserved; to be determined at the end of the trial on quantum.
3.
The matter is postponed sine die.
AJ
BAM ACTING JUDGE OF THE HIGH COURT.
1
JUNE 2012