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[2008] ZAWCHC 330
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Gilson v Shoprite Checkers Ltd (A 69/2008) [2008] ZAWCHC 330 (25 August 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case
no. A 69/2008
In
the matter between:
JENEPHER
CONSTANCE MARY REGINA GILSON
.........................................................
Appellant
v
SHOPRITE
CHECKERS LIMITED
...................................................................................
Respondent
JUDGMENT
GIVEN THIS MONDAY, 25 AUGUST 2008
CLEAVER
J:
[1]
The appellant, to whom I shall refer as the plaintiff, a 62 year old
grandmother at the time, fell and injured herself while
shopping at
the supermarket of the respondent, to whom I shall refer as the
defendant, in Meadowridge, Cape Town on 16 June 2004.
[2]
The plaintiff then unsuccessfully sued the defendant in this court
for damages resulting from the injuries which she had sustained,
but
her claim was dismissed by Van Reenen J who held that she had failed
to discharge the onus of showing on a balance of probabilities
that
the defendant was in law liable for any damages suffered by her. The
plaintiff now comes on appeal to the full court, with
the leave of
the trial judge.
[3]
The case for the plaintiff was that she had slipped on the floor
while she was standing at a till and placing items which were
in her
shopping trolley on the counter. Her fall was said to have been due
to the sole negligence of the defendant who in the particulars
of
claim was alleged to have been negligent in one or more of the
following respects:
By
allowing the floor to be full of dust and extremely slippery;
By
failing to put up warning notices advising customers that the floor
was unsafe and slippery;
By
failing to clean the shop floor and keep it free of risk to
customers and
By
failing to take reasonable steps to avoid the shop floor becoming
dangerous to customers when it was in a position and able
to do.
[4]
The defendant denied that it was liable in the respects claimed, or
any of them, and in the alternative pleaded that in the
event of the
court finding that the defendant was negligent, the plaintiff’s
negligence contributed to her falling.
[5]
The plaintiff testified that on the morning in question she had gone
to the defendant’s store to make certain purchases.
She says
that the floor of the store was very slippery that morning and
ascribed this to dust on the floor. In the light of the
view which 1
take in regard to the plaintiff’s evidence as to how she
slipped, I think it is necessary to say that save for
the bald
statement that the floor was very slippery, the plaintiff did not
give any evidence that her feet had slipped on the floor
at any stage
prior to the incident giving rise to the action. It is common cause
that at the time building or construction activities
were taking
place in the shopping centre either in relation to a Woolworths store
which was being erected and/or alterations which
were being made to
the parking lot. As will be seen, counsel for the plaintiff submitted
that it was likely that the dust to which
the plaintiff referred
would have originated from the building operations. The plaintiff
says that she wore lace up “
veidskoens”
with “
almost a rubbery sole
”
because she was careful not to have slippery footwear. She explained
that in September 2001 she had ripped and fallen on
her left shoulder
in a car park. This resulted in a fracture of he humerus. A total
shoulder replacement was performed and subsequently
she had different
operations to stabilise the shoulder and finally had prosthesis
inserted, in the result she was left with a very
weak shoulder girdle
which meant that she was very much reliant on her right arm. In the
result she required assistance whenever
she had to purchase a large
number of items. On the morning in question she purchased only a few
items which she placed in a small
trolley and then pushed the trolley
to checkout counter number six which is depicted on a plan which was
before the court. Precisely
how she came to fall is not entirely
clear from her evidence. She says that once she had reached the
checkout counter she remembered
starting to transfer items which she
had bought from the trolley to the counter by leaning over to her
left hand side where the
trolley was and using her right hand to
effect the transfer. At this stage she says:
“
Well
I was like getting my balance right and my balance is fine and
something
slipped and my leg slipped and all I did
was,
it
was, I slipped and I went flying backwards onto my bottom, my
glasses went flying off and then
/
was
just in immediate pain.
”
In
cross-examination and when questioned about her balance, she said:
“
Well
it wasn’t, I’ve never had a doubt about my balance I was
in the process of adjusting my legs to sort of accommodate
where I
was standing and putting on the counter. ”
Finally
she said:
“
No,
I
-
I
displaced my weight to my right foot and why I’m pretty sure
of that, that this is something that I normally do because
I am so
aware of my left arm that I move, you know, to my
-
I
mean, that is me, that’s what I always do. So I’m sure I
walked up, stood like that and would have moved slightly
to the
right of me, I would have. ”
It
is not entirely clear to me how the plaintiff slipped and fell, but
the impression which I gain from this evidence is that
the plaintiff
did not slip while moving her right foot from one position to
another, rather that the slip occurred when she transferred
her
weight to her right hand side in order to reach across to the
trolley to take items from it.
[6]
It is common cause that Mr I de Waal (“De Waal”), the
Fresh Foods Manager at the store, helped the plaintiff up.
De Waal
says that when he helped the plaintiff to her feet, he took her to a
chair which was positioned directly opposite the
parcels counter and
tried to make her comfortable there. It is apparent from the plan
filed of record that the parcels counter
is more or less opposite
tills ten and eleven. He forthwith reported the incident to the
Administration Manager, Mr Lance Day
(“Day”) whose
office is very close to the parcels counter and the latter came and
spoke to the plaintiff while she
was sitting on the chair. De Waal
says that he then left the matter in Day’s hands and left the
scene. Day says that he
merely took salient details from the
plaintiff who was then assisted out of the store by a member of his
staff who took the plaintiff
to the parking lot where she was met by
a friend and taken home. De Waal had nothing to do with the matter
thereafter which was
dealt with by Day.
[7]
The evidence of the plaintiff, Day and De Waal differs in respect of
Day’s involvement. As already mentioned, De Waal
says that he
called Day from the latter’s office to the plaintiff where she
was sitting on the chair. Day says that De
Waal brought the
plaintiff to his office where he took down her particulars, while
the plaintiff denies that she spoke to Day
at all on the day in
question. However it is dear that on the following day, 17 June, Day
reported the incident to his Head Office
and that by then he had
spoken to the plaintiff.
[8]
Both De Waal and Day testified that shortly after the incident, they
had gone to the area where the plaintiff had slipped
and fallen to
examine the floor surface. Both testified that there was no sign of
any spillage, water or anything untoward on
the floor. In answer to
a question put to him by the presiding judge as to whether he
specifically focused on dust when he examined
the area where the
plaintiff had fallen, Day testified:
“
Well,
I focused on the floor as a whole, In the area where she’d
slipped, and looked for anything that could have caused
it, whether
it was dust, whether it
was
a
bit of water, or something that had dropped on the floor, maybe a
lettuce leaf or things that people would usually slip on,
but I
didn’t see anything of the sort, anywhere. ”
The
plaintiff did not testify that when she saw De Waal or Day after she
had fallen she had told either of them that she had slipped
because
the floor was dusty and both De Waal and Day testified that in fact
she made no such communication to them.
[9]
Relying on the proximity of the building operations in the centre as
a source for dust on the floor of the store, plaintiff’s
counsel submitted that the plaintiffs evidence to the effect that
the entrance door or doors to the premises were open at the
time
should be accepted. The plan which was put before the trial court
showed entry and egress to and from the defendant's store
to be
gained through two wind lobbies. The wind lobbies are situated in
front of the store and the plan shows that on the outside
and the
inside of each lobby provision is made for a pneumatically operated
door which opens automatically when persons approach
the door. Day
testified that the doors were in place in the year 2000 when he took
up employment with the owners of the defendant’s
store and
that they were also in operation at the time of the incident. The
plaintiff’s evidence in this regard is in my
view not
convincing. Her initial testimony was that on the day in question
the doors leading into the shop were not as shown
on the plan and
she says that “
it was not a
double door both of them sliding it just wasn’t
....
you walked in the entrance I
think the inner door if there was one was'always open, the outer
door I’m pretty sure didn’t
even open was open anyway it
was not the same double doors at all”.
In cross-examination she said the following in regard to the wind
lobby:
“
Well
I know it was not used as a wind lobby because even in the last 18
months that people, I’ve sat there and for people
have gone in
and out they say this is wonderful it opens and it closes and it
never used to be like that. It
was
not
like that, that it automatically opened and closed and there was a
double wind barrier, there wasn’t”
Later
on she reiterated that it was not used as a double door wind lobby:
"...that
I will swear of because people have commented about it since, it’s
nice now. ”
[10]
The impression that I gain from this evidence is that the
plaintiff’s assertion that the doors were open at the time
of
the incident stems from the fact that after the event, she noticed
that the doors opened and closed. In other words, her evidence
seemed to have been based on a reconstruction. The evidence of both
De Waal and Day was that the sliding doors had been in operation
well before the date of the incident and were in operation at the
time. The trial judge recorded that he was unable to reject
the
evidence of Day to the effect that the automatic operation of the
sliding doors could be deactivated but that it happened
only on wind
free days. He also recorded that there was no evidence of the wind
conditions on the day in question. In any event,
he concluded that
since
The
entry and egress points to each lobby were not situated directly
opposite each other and
The
checkout counters where the plaintiff fell were not opposite the
wind lobbies;
it
was highly unlikely that dust in concentrations sufficient to have
constituted a danger to customers would have been blown
on to the
floor in the area where the plaintiff fell in the three to four
hours after the floor would have been cleaned. (As
to the cleaning
see para [20].)
In
my view the trial judge was correct in coming to this conclusion.
[11]
Mrs G M Graham also testified on behalf of the plaintiff. She is
related to the plaintiff in the sense that her husband’s
brother is married to the plaintiff’s daughter. She testified
that she had slipped, but not fallen, in the defendant’s
store
in the same week that the plaintiff had slipped and fallen, but
prior to that incident. She also testified that building
operations
were taking place in the vicinity of Woolworths in the centre. Mrs
Graham’s evidence was that she slipped, not
at one of the
checkout tills, but near the cold meat section. Her evidence as to
what caused her to slip is by no means convincing.
You
didn’t say what you slipped on?
—
I slipped on the floor.
But
you don’t know what it is that you slipped on, you don’t
know whether it was dust or water do you?
—
No it certainly wasn’t
water.
But
you don’t know what you slipped on.
—
No I distinctly slipped.
You
slipped
,
that I accept Mrs Graham but
I’m putting it to you that you don’t know what you
slipped on.
—
No
I would have remembered the water because when Mrs Gilson said she
fell I
was,
as
I said wow the same thing
happened to me.
So
you think you would have remembered the water?
—
Yes.
But
you don’t know what it was that you slipped on?
—
No it
was
definitely on a dusty floor
and I’m very sensitive to dust I wear contact lenses.
So
now you’re saying it was definitely on a dusty floor?
—
It was on the floor yes.
It
was on the floor.
—
Ja.
That
I understand it was on the floor but you're saying that the floor
was dusty.
—
It
was dusty because I’ve never slipped there before.”
In
my view the trial judge correctly disregarded the evidence of Mrs
Graham. As I have already attempted to show, her evidence
was
unconvincing. Her evidence was further to the effect that she was in
the store on a week day after work, whereas the plaintiff
slipped
and fell on a public holiday. Furthermore, her experience at the
store occurred at the end of a working day and not three
or four
hours after the store would have been cleaned. Finally, and perhaps
most importantly, her similar fact evidence is of
very little
probative value. No basis was laid to show that at the time when she
slipped conditions were sufficiently similar
to give any probative
value to the evidence.
[12]
The plaintiff testified that the person who assisted customers in
packing their goods into packets at the checkout counter
where she
fell was Ms Celeste Ruiters who assisted her out of the shop. Ms
Ruiters, who testified on behalf of the defendant,
denied that she
had assisted the plaintiff out of the shop and also denied the
plaintiff’s evidence that she had told the
plaintiff that one
of the managers had slipped and fallen in the store two weeks
previously and that other people had nearly
fallen as the floors
were slippery. She did however confirm De Waal’s evidence to
the effect that it was he who had helped
the plaintiff up after she
had fallen and that he had then ensured that the plaintiff was
seated on a chair in front of the parcels
counter. Her evidence also
differed from that of the plaintiff in that she said that the
plaintiff fell as she approached the
checkout counter. At this stage
she said, the plaintiff’s trolley was in front of the till,
After the event she looked
to see whether something had perhaps
fallen onto the floor to cause the plaintiff to fall, but found
nothing of any nature. She
also found that the floor was dry. It was
put to her by the trial judge that the plaintiff had said that there
was dust on the
floor wherever she looked. Ms Ruiters answered that
she could not say that this was so. In answer to a direct question
as to
whether she could say whether there was dust on the floor, she
answered that there was no dust and dust is something which a person
cannot see
(i:stofis iets wat mens
nie kan sien nie!).
I understand
this answer to mean that the dust which was being referred to was so
fine that it would not have been visible. She
also testified that
no-one had said anything about dust at the time.
[13]
In seeking to persuade us that there was dust which was obviously
visible to all and sundry on the floor throughout the store
and that
the plaintiff had slipped on dust, counsel for the plaintiff relied
heavily on certain correspondence from the plaintiff
after the
unfortunate event. In a letter to the defendant’s insurers on
7 July 2004, the plaintiff recorded that:
Mr
de Waal had helped her up with great difficulty after her fall and
had told her that he was aware of the slippery floors,
that it was
their fault and that they accepted responsibility. In the letter
she also recorded that after she had taken her
doctor’s
report to the store, a young packer at the store named Anne helped
her with her shopping and told her that quite
a lot of people had
either slipped or had had near falls as the floor was so slippery.
(Anne was not called as a witness.)
When
she brought her medical bills in to Day, Day told her that they had
a real problem with the slippery floors and assured
her that her
fall had been reported to the insurers and that her medical costs
would be covered. She recorded further that
Day had also said that
the problem was that a new Woolworths store was being built in the
shopping centre and the digging up
of the parking area outside
Shoprite had caused a lot of dust to form on the floors making them
very slippery and that they
had to keep mopping the floor which
made it worse.
[14]
Both De Waal and Day denied that they had made the alleged
admissions to the plaintiff. Day’s report to the insurers
recorded that he had asked the plaintiff if the floor was wet or if
something was lying there and that the plaintiff had replied
that
there was nothing on the floor, 'she just slipped’. Both also
testified that it was the company policy that no admissions
of the
type referred to by the plaintiff could be made by any members of
staff.
[15]
It was submitted that failing to accept what plaintiff had averred
in her letter of 7 July as to what the defendant’s
employees
had said to her after the incident would mean that she had made this
up. Although the letter cannot simply be ignored,
it still remains
for the plaintiff to prove what had caused her to slip and fall on
the day in question.
[16]
Plaintiff’s counsel submitted that since it was never put to
the plaintiff that De Waal and Day would say that she
did not tell
them that she had slipped on dust, their evidence to this effect
should not be relied upon. However, the fact is
that the plaintiff
herself did not testify that she had told either De Waal or Day that
she had slipped on dust.
[17]
It was also submitted that Day’s evidence should be rejected
since he testified that the plaintiff had been brought
to his office
whereas De Waal testified that he had called Day to see the
plaintiff where she was sitting on the chair at the
parcel counter.
I do not consider this discrepancy to be of such import as to
justify the rejection of Day’s other evidence
to the effect
that he. did not make any of the alleged admissions to the
plaintiff.
...
.
[18]
It was contended on behalf of the plaintiff that the defendant had
not established at which til! the plaintiff had slipped
and fallen
and that it had also not established that there was no dust in the
aisle of that till. In this connection it is necessary
to point out
that since the plaintiff bore the onus
1
,
it was not incumbent on the defendant to establish at which till the
appellant slipped and fell nor did it have the onus to
establish
that there was no dust in the aisle of that till.
[19]
In my view, the plaintiff did not establish that she fell at till no
6, as she initially testified, or six tills down from
the
information desk as she later testified; and I am satisfied that the
trial judge was correct in accepting the evidence of
De Waal, Day
and Ruiters that she fell approximately opposite the parcels
counter, thus in the area between tills 10 and 12.
[20]
In deciding whether the plaintiff had discharged her onus, the trial
judge took into account that the floor of the defendant’s
store had probably been thoroughly cleaned on the morning in
question, some three or four hours before the plaintiff slipped
and
fell, thus minimising the time when dust might have entered the
store. Counsel for the plaintiff criticised this finding
as there
had been no direct evidence as to how the floor had been cleaned
that.morning^^..:Bpth;:.;Day:;and;,De Waal explained
that the
cleaning of the floor had been contracted out to an independent
third party known as Mr Clean. Each testified that employees
of Mr
Clean would arrive at the store at approximately 06h00 every morning
when the floor was thoroughly cleaned with a detergent
and/or soapy
water being applied with mops and thereafter dried. This operation
was always completed by 07h45 prior to the store
opening at 08h00.
This was a standard procedure and was observed by them when they
arrived at the store before opening hours.
On occasions it was
expected of them to be at the store when it opened for the cleaning
operation at 06h00. In the light of the
evidence of both De Waal and
Day that it was standard practice for the floors to be cleaned every
morning, I am of the view that
the trial judge was entitled to find
that the shop floor had in all probability been cleaned in the usual
manner on the morning
in question prior to the shop opening for
business. De Waal and Day also testified as to the procedure adopted
if spilling occurred
during the day. They explained that in such
event, a warning sign would be put up on the floor to warn customers
of the danger
and that one of three cleaners who were on duty all
day would spot clean the affected area. The trial judge was of the
view had
the plaintiff been able to show that dust had accumulated
in sufficient quantities, she would have established that a
hazardous
situation had arisen. He therefore concluded that the
evidence of the defendant’s witnesses as to the spot cleaning
had
been tendered to merely negative any inferences of negligence,
without however displacing the evidentiary burden resting on the
plaintiff. 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.
[21]
An architect called by the plaintiff testified that there were three
possible ways in which dust could have entered the supermarket,
namely
Through
the ducted air-conditioning system;
By
being brought in by persons entering the supermarket from the
storage areas at the rear; and
By
being blown in by the wind through the sliding doors of the wind
lobbies.
[22]
The judge correctly, in my view, rejected the first two
possibilities on the basis that there was no evidence to support
them. As to the third possibility, he concluded that having regard
to the position of the wind lobbies and sliding doors in relation
to
the check out counters where the plaintiff fell, it was highly
unlikely that dust in concentrations sufficient to have constituted
a danger to customers would have blown there in a relatively short
time. In my view he was justified in coming to this conclusion.
[23]
This means that we are left with the evidence of the plaintiff on
the one hand, who says that the floor of the store was
extremely
slippery because of the presence of dust and the evidence of De
Waal, Day and Ruiters on the other hand who were not
aware of any
significant amounts of dust being present and who all confirmed that
nothing untoward could be seen on the floor
in the area of the store
where the plaintiff fell. Significantly also, the plaintiff did not
tell either De Waal or Day that
the dust on the floor had caused her
to fall when they spoke to her.
[24]
It was also submitted that the defendant’s action in receiving
and considering the plaintiff's medical bills was an
indication that
the defendant accepted liability for her damages. However, as
pointed out by the trial judge there was no reason
to disbelieve
Day’s evidence that the defendant’s staff were not
authorised to make any admissions since the defendant
carried
insurance for claims of the nature of plaintiff’s claim. His
evidence was that they merely assisted the plaintiff
by passing her
bills on to the insurance company.
[25]
Plaintiff’s counsel also asked us to draw an adverse inference
against the defendant resulting from the disappearance
of a
so-called Incident Book in which Day had recorded the incident at
the time. Day was no longer in the employ of the defendant
at the
time of the trial, having left the Meadowridge store at the end of
2004. Consequently he was unable to explain what had
happened to the
Incident Book, but an affidavit filed by the insurance manager of
the defendant revealed that the book could
not be traced as it had
become misplaced at the store. It appears that older Incident Books
could also not be located and the
deponent recorded that in her view
the older Incident Books had also been disposed of. No doubt the
Incident Book would have
been helpful, but the judge recorded that
although its disappearance raised suspicion, that in itself did not
warrant an inference
that other incidents of slipping or falling had
occurred or been had been reported.
[26]
The trial judge concluded that in the light of the evidence given by
Day, De Waal and Ruiters and the unlikelihood of dust
having entered
the supermarket in the relatively short time-span which applied, the
evidence of the plaintiff that the floor
was extremely slippery was
not sufficient to discharge the onus which rested on her. This was
for her to establish, on a balance
of probabilities, that sufficient
dust had accumulated on the floor of the store where she fell to
make it reasonably foreseeable
that a customer might slip and fall
on the dust. The mere fact that the defendant slipped is no evidence
of negligence on the
part of the defendant, for
"People
slip and fall daily, due to some negligence or inadvertence or
oversight on their part or for other reasons.
2
[27]
In reaching his conclusion the trial judge found the plaintiff’s
description as to how she came to slip and fall difficult
to follow,
as indeed I did. Why she should have shifted her weight onto her
right leg in order to lean across to her left hand
side is by no
means clear.
[28]
In my view the trial judge was correct in concluding that the
plaintiff failed to show on a balance of probabilities that
the
defendant was in law liable for any damages suffered by her and in
the circumstances I would dismiss the appeal with costs.
R B CLEAVER
TRAVERSO
AJP
I
agree and it is so ordered
J H M TRAVERSO
YEKISO
J
I
agree.
N J YEKISO
1
Monteoli
v Woolworths (Pty) Ltd
2000
(4) SA 735
(W)
2
Koenig
v Hotel Rio Grande (Pty) Ltd
1935
CPD 93
at p 99