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[2009] ZAGPJHC 90
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Both v Post Office Café Bazaar CC (39502/08) [2009] ZAGPJHC 90 (11 November 2009)
IN THE SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO
: 39502/08
DATE:
2009-11-11
In the matter between
BOTH CORNELIA Plaintiff
And
POST OFFICE CAFÉ BAZAAR CC Defendant
_________________________________________________________
J U D G M E N T
_________________________________________________________
WILLIS, J
:
[1] The plaintiff has claimed damages as a result of her having
tripped, stumbled and fallen at the defendant’s premises
being
a Spar Supermarket situated at 674, Voortrekker Street (corner 19
th
Street) Brakpan on 2 October 2006.
[2] In paragraph 4 of the plaintiff’s particulars of claim, it
is pertinently alleged as follows:-
“On or about 2 October 2006, the plaintiff was on the premises
when defective flooring on the premises caused the plaintiff
to trip,
stumble and fall (“the accident”)”.
[3] In the defendant’s plea to this allegation, the defendant
says as follows:-
“Save to deny that defective flooring caused the plaintiff to
trip, stumble and fall, the defendant admits the allegations
of
plaintiff.”
According to the pleadings it is therefore common cause that the
plaintiff tripped. This has a significance which will later become
more fully apparent.
[4] In paragraph 6 of the particulars of claim, the plaintiff alleges
as follows:-
“As a consequence of the accident, the plaintiff sustained soft
tissue injuries to the left shoulder and neck as well as
a fracture
of the neck on the left humerus, suffering as a consequence damages
in an amount of R213 913.19 …”.
[5] The defendant pleads as follows to these allegations:-
“The defendant has no knowledge of the allegations in this
paragraph, accordingly denies the plaintiff’s allegations,
does
not admit the same and puts the plaintiff to the proof thereof.”
[6] At the commencement of the trial, the parties made application
for there to be a separation of the question of quantum from
the
merits and that the trial should proceed on the merits only at this
stage. The application was brought in terms of Rule 33(4).
I was
pleased to grant such an order.
[7] By the end of the trial, it was common cause that this was
all-or-nothing case. In other words, this was not a case where there
should be an apportionment. The plaintiff was either to succeed to
the extent that the plaintiff was liable for 100 percent of
her
proven damages or there was to be absolution from the instance.
[8] As I have already said, the defendants operate a so called Spar
Supermarket. The plaintiff was born on 18 July 1951. Therefore,
while not being particularly youthful, she is not singularly elderly.
She was a fan of the supermarket, having being a regular
patron
there in order to purchase bread which she describes has having been
“delicious”. She described how, on the
day in question,
she went accompanied by a person referred to as “Gladys”
to buy bread and, while in the supermarket,
she tripped and fell.
The plaintiff described how she had been wearing sandals on the day
in question and that she had not been
in a hurry. She experienced
excruciating pain as a result of her fall, had to receive medical
attention and on the day in question,
simply did not know what it was
that had caused her to trip and fall.
[9] The next day, she went to that supermarket in the company of one
Jolene Boshoff, who at the time had lived next door to her
and was
the daughter of her neighbour. When they went to the supermarket,
the plaintiff pointed out to Jolene Boshoff the whereabouts
of her
accident and asked Boshoff to slide her feet across the floor to
determine if there was any obstruction. Jolene Boshoff
pointed to a
tile that protruded in a corner, some half a centimetre to a
centimetre above the rest of the tiles that were on the
floor. This,
the plaintiff seems to suggest, was the obstruction that caused her
to trip and fall. Some considerable time later,
she returned to the
store with her attorneys but it seemed that the protruding tile had
been “made good”.
[10] It is common cause that the accident was recorded on closed
circuit television which had been operating in the supermarket
at the
time. The plaintiff, in addition to testifying herself, called
Jolene Boshoff who confirmed, in every material respect,
the
evidence of the plaintiff relating to Ms Boshoff’s discovery of
the protruding tile.
[11] The plaintiff yesterday sought an adjournment in order to call
the person known as “Gladys”. The court was informed
that
Gladys was unwell due to a middle ear infection. Reluctantly, I
agreed to stand the matter down until this morning, at 10:00
am. This
morning, the witness was not available. I then agreed to stand the
matter down until 11:30 am. The witness still did not
make any
appearance. Mr
Meyer
, who appears for the plaintiff, asked
for a postponement. I refused the postponement but reserved the
question of costs. I should
at this stage mention that the
defendant’s own witness proceeded to describe the incident from
what he could see from a closed
circuit television video recording.
According to the defendant’s witness, the person referred as
Gladys, who had been in
the plaintiff’s company at the time of
the accident, had been in front of the plaintiff at the time of the
accident and turned
around only after the plaintiff had fallen. She
would not, therefore, have been able to add materially to the factual
dispute,
if at all. It seems, however, from the argument of Mr
Meyer
, who appeared for the plaintiff, that he had intended to
call Gladys on the question of whether or not the plaintiff had
spoken
to the defendant’s witness, Mr Chris Phillippou on the
actual day of the accident. This, of course, is a collateral issue
and relatively unimportant. It has no real bearing on how the
accident actually occurred but, rather, has to do with the question
of credibility.
[12] The defendant called only one witness, the aforementioned Mr
Philippou. He described himself as a “partner”
in the
business of the Spar Supermarket. He said that he had seen the
plaintiff personally on the day of the accident. This is
a matter
that is in factually in dispute because the plaintiff said she did
not see him on that particular day. He confirmed that
the incident
had been recorded on closed circuit television. The record of that
recording he said “disappeared from the
motherboard of the
computer”. The reason he gave for this was that there was the
“storm damage”.
[13] The witness, Mr Philippou, denied that there was any protruding
tile and he denies that any protrusion had been made good
after the
accident. As I have already recorded, the evidence of the plaintiff
was that she went a considerable time afterwards
to inspect the scene
with lawyers and that at that time the protrusion had been made good.
[14] Mr Philippou said that he had watched the accident as recorded
on a closed circuit television several times. In response
to a
question by myself, he replied that he was certain that the plaintiff
had
tripped
and not
slipped
, although, interestingly,
in the report form that he submitted to Santam, his insurance in
respect of public liability, which he
completely fairly soon after
the accident, he described the plaintiff as having “slipped”
and then “fell to the
ground”. Although he observed this
recording several times, he could not say why it was that the
plaintiff had tripped.
[15] In evaluating the evidence, I am mindful of the well known
passage set out in the case of
SFW Group Limited & Another
v Martell et Cie & Others,
2003 (1) SA 11
(SCA) at
paragraph [5] as follows:-
On the central issue as to what
the parties actually decided, there are two reconcilable versions.
So, too, on a number of peripheral
areas of dispute which may have a
bearing on the probabilities. The technique generally employed by the
courts in resolving factual
disputes may conveniently be summarised
as follows:
To come to a conclusion on the
disputed issues, a court must make findings on:
The credibility of the various
witnesses;
Their reliability;
The probabilities.
As to (a) the court’s
finding on the credibility of a particular witness will depend on its
impression about the veracity
of the witness. That, in turn, will
depend on a number of subsidiary factors not necessarily in order of
importance such as:
The witness’ candour and
demeanour in the witness box;
His bias, latent or patent;
Internal contradictions in his
evidence;
External contradictions in what
pleaded or put on his behalf, or with established fact or with his
own extracurial statements
or actions;
The probability or
improbability of particular aspects of his version;
The calibre and cogency of his
performance compared to that of other witnesses testified about the
same incidents or events.
As to (b), a witness’
reliability will depend, apart from the factors mentioned under (a)
(ii), (iv), (v) above, on
the opportunity he had to
experience or observe the events in question; and
the quality, integrity and
independence of his recall thereof.
As to (c),, this necessitates
an analysis and evaluation of a probability or improbability that
each parties’ version on each
of the disputed issues. In the
light of its assessment of (a), (b) and (c) the court will then, as a
final step, determine whether
the party burdened with the
onus
of proof has succeeded in discharging it. The hard case which will
doubtless be the rare one, occurs when a court’s credibility
findings compel it in one direction and its evaluation of the general
probabilities in another. The more convincing the former,
the less
convincing will be latter. But when all factors equipoised the
probabilities prevail
.
[16] The plaintiff indeed impressed me as an honest and careful
witness. So too, was I impressed with the candidness of
Jolene Boshoff
who one may describe as being a largely
independent witness. She obviously had some affinity with the
plaintiff. Nevertheless,
as I already indicated, she corroborated the
evidence of the plaintiff regarding the protruding tile.
[17] Mr
Pieterse
, who appears for the defendant, on the other
hand, submitted that I could only find that there was a protruding
tile if I were
to find that the witness on behalf of the defendant,
Mr Philippou, had been a deliberately dishonest, if not full
fraudulent witness
regarding the question of there having been no
protrusion and its not having been made good. There are criticisms
that can be
made in the evidence of Mr Philippou. I was not
impressed with his inability to describe how it was that the
plaintiff tripped.
On his own version of events, he had watched this
video several times. I am somewhat surprised that the closed circuit
television
recording of the accident became irretrievably lost,
bearing in mind that the defendant was aware that there was a
potential claim.
The defendant must have been aware of the importance
of the video evidence at a very early stage. It surprises me that
they had
not taken steps to have it recorded in some indestructible
way, such as on a compact disk (“CD”) or a memory stick
or some other device. I also find it interesting that when I warned
him to be careful with his answer when I pertinently asked him
whether the plaintiff had
tripped
or
slipped
, he was
adamant in his reply that plaintiff
tripped
not slipped. On
the other hand in his statement, regarding the possibility of a
public liability that which he submitted to Santam
he did say, I have
said, that the plaintiff
slipped
.
[18] Mr
Pieterse
attempted to make light of the difference
between “tripping” and “slipping”. I shall
revert to that aspect
later on. Nevertheless, I accept that it is a
considerable
quantum
leap, in the circumstances of this case,
to find that Mr Philippou was deliberately lying to regard to the
alleged protrusion of
the tile and in regard to the failure of the
defendant to have been party to “covering up” the
offending part of the
floor.
[19] The question then arises as to whether I indeed need to find
that there was a precluding tile which explains the accident.
As I
have already mentioned, the plaintiff described how she had been
wearing sandals on the day in question and that she had
not been in a
hurry. Her injuries in respect of which she claims do not suggest
that she fell, as so often happens with women
of a certain vintage,
as a result of suffering from osteoporosis – i.e. that the
bones in their body first break as a result
of which they fall
(rather than the other way round). Her injuries record no injury to
her legs.
[20] The defendants, in effect, confessed and avoided the allegations
relating to the injuries which the plaintiff sustained. In
other
words, there was no real dispute in regard thereto. The plaintiff was
merely required to prove her injuries. If, therefore,
one has regard
to the fact that the plaintiff appears to have suffered injuries to
her neck and shoulder, rather than her legs
or, to put it in more
colloquial terms, her “backside”, this suggests that she
did indeed
trip
and not
slip
.
[21] I shall also have recourse to that good, old-fashioned standby,
The Oxford Dictionary
in order to see whether I am correct in
my view, that there is, in common parlance, a difference between
“tripping”
and “slipping”. To “slip”
is described in the
Oxford Dictionary
as to “loose one’s
balance or footing and slid unintentionally for a short distance”.
To “trip”,
on the other hand, is defined as “to
catch one’s foot on something and stumble or fall”. Mr
Pieterse
attempted valiantly to persuade me that the
defendant’s witness would not really have understood the
difference between “tripping”
and “slipping”.
I accept, from the accent of Mr Phillippou, that he may not have
been thoroughly familiar with in
the English language. Nevertheless,
it seems to me that, when I put the question, “Did she trip or
did she slip?”,
he had no difficulty understanding that there
was a difference between the two and confirming that indeed the
plaintiff had tripped.
He seemed quite clear in his mind about this.
Regardless of the finer niceties of the definitions that may appear
in the
Oxford Dictionary
, in my view a tripping entails a
falling forward, whereas slipping entails a falling backwards. The
plaintiff, fell forward. The
significance of the distinction for
purposes of this case, is that the plaintiff obviously did not slip
on some “errant bean”
lurking where it should not be - to
use as an example the hard facts with which I was confronted in the
case of
Monteoli v Woolworths (Pty) Limited
,
2000
(4) SA 735
(W). She could not have slipped on oil or water or
anything of that kind. There must have been some or other
obstruction on the
floor which caused the plaintiff to trip.
[22] I do not think it is necessary for me to go so far as to find
that the obstruction was a protruding tile. Obviously, however,
if
one accepts the plaintiff’s version, that may be an
explanation. The fact is that there must have been an obstruction.
I say so because she did not slip. Moreover, she was not so elderly
as to have suffered an osteoporotic fall. The pleadings do
not
suggest any injury to her leg or a broken hip or indeed any injury to
her “backside” (all of which would have been
probable if
she had slipped). As I have already indicated, the witness describes
how she had tripped. This fact of her having
tripped was not
disputed. The plaintiff has also said she was not in hurry. There is
no reason to disbelieve her. Given her age,
it is unlikely that she
would have been running like a child, impervious as to the
possibility of any obstacle in her way. She
described how she was
walking. There is nothing to suggest that the sandals which she was
wearing may have caused her to trip.
The plaintiff has denied that
this could have been the cause. There must, as I have said, been some
or other an obstacle.
[23] If one has regard to the most recent case of
Chartaprops
(Pty) Limited & Another v Silberman
,
[2008] ZASCA 115
;
2009 (1) SA 265
(SCA)
which deals with the liability of a defendant operating shops, such
as the one in question, where accidents such as this
one occur, it
seems that any obstacle that was on the floor over which the
plaintiff may have tripped, is an obstacle which should
not have been
there. The trend of cases entail that it is strongly suggestive of
negligence and unlawfulness if supermarkets allow
obstacles to be on
the floor, which should not be there and which cause persons to have
accidents.
[24] I accordingly find that the plaintiff tripped and fell as a
result of some or other obstacle on the floor of the supermarket
which should not have been there and for which the defendant is
liable on the basis of the well known test in
Kruger v Coetzee
,
(1962) SA 428
(A) at 430E:
For the purposes of liability
culpa
arises if-
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 cause him patrimonial
loss; and
(ii) would take reasonable steps
to guard against such occurrence; and
the defendant failed to take
such steps.
[25] I turn now to deal with the question of costs. It is correct
that we lost almost an entire day because of the plaintiff’s
potential witness not being available and the difficulties which the
plaintiff had in making up her mind as to whether or not she
would
proceed without that witness and whether or not she wanted a
postponement. It therefore seems to me that the defendant should
be
ordered to pay the costs of the trial but that these costs should be
limited to one day court day only in the actual trial itself.
[26] The following is the order the court:
1. The defendant is to pay the plaintiff 100 percent of her proven
damages arising from the accident which occurred at the defendant’s
premises on 2 October 2006;
2. The defendant is to pay the plaintiff’s costs of the trial
on the merits, but these costs are limited to one day only
of the
trial proceedings before this court.
Counsel for the plaintiff: Advocate S Meyer
Counsel for the defendant: Advocate J E Pieterse
Attorneys for the plaintiff: De Jager Du Plessis
Attorneys for the defendant: Cliff Decker Hofmeyer Incorporated.
Dates of hearing: 10 and 11 November 2009
Date of judgment: 11 November 2009.
---oOo---