Badenhorst v Liberty Properties (Pty) Ltd (1309/2003) [2004] ZAFSHC 86 (12 August 2004)

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[2004] ZAFSHC 86
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Badenhorst v Liberty Properties (Pty) Ltd (1309/2003) [2004] ZAFSHC 86 (12 August 2004)

IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No.: 1309/2003
In
the matter between:
S.J.
BADENHORST
Plaintiff
and
LIBERTY
GROUP PROPERTIES
Defendant
(PTY)
LTD
___________________________________________________________
CORAM:
EBRAHIM,
J
___________________________________________________________
HEARD
ON:
27, 28 & 30 JULY 2004
___________________________________________________________
DELIVERED
ON:
12 AUGUST 2004
___________________________________________________________
[1] The plaintiff claims damages in the amount of R369
617,06 in respect of injuries she sustained during a fall which
occurred on
29 May 2000 in the Liberty Centre in Welkom, which is
owned by the defendant. It was agreed at the outset of the trial
that there
should be a separation of the merits and
quantum
,
and accordingly the trial proceeded on the merits only.
[2] The
plaintiff’s case is that on the said date she was in the centre
when she slipped and fell on the black tiles in the centre,
thereby
injuring her back. She described these tiles as smooth and slippery.
She said that on that day she had been wearing Green
Cross rubber-
soled shoes which gave very firm support and she testified that she
had worn those shoes before on other tile surfaces
and other floor
surfaces, and she had never slipped wearing them.
[3] The plaintiff called an expert Andre Wessels, an
architect, to testify on its behalf. He testified that he had
examined the premises
in question with reference specifically to the
surface area on which the fall had occurred. He testified that the
entire public
thoroughfare area of the centre had been tiled using
two types of tiles. One was an ochre coloured rough surface tile,
whilst the
other was a black highly glazed smooth tile which he said
was highly slippery and highly dangerous. He said for those reasons
this
sort of black tile was not being used commercially anymore
since it had caused many persons walking on them to slip and fall and
injure themselves. He also testified that if one were wearing very
good rubber-soled shoes, the chances of slipping on such tile
would
be minimized. He conceded that thousands of people used the
particular Liberty Centre in Welkom and that he had not heard
of any
accidents having happened in that Centre as a result of a person
slipping on the tiled floor.
[4] The defendant’s case on the other hand was that
the black tiles which had been laid in the Centre were not so smooth
and slippery
that it would ordinarily cause a person to slip and
fall. The defendant’s allege that thousands of persons use the
Liberty Centre
on a daily basis and that they had not once received a
complaint of this nature, namely that someone had slipped on the tile
and
fallen. The defendant further alleges that it depended entirely
on the kind of shoes, more specifically the type of rubber-soled
shoes which plaintiff had been wearing at the relevant time, when she
fell. The defendant’s case is that it could well have been
the
type of shoes which the plaintiff had been wearing which had caused
her to slip and fall, rather than the black tile in the Centre.
[5] The issue that I am called upon to decide in this
case is accordingly one of causation, that is what exactly was it
which caused
the plaintiff to fall? That being the case and there
being no evidence whatsoever placed before me of the kind of
rubber-soled shoes
which the plaintiff alleges she had been wearing
at the time, I find that the probabilities in this matter are evenly
balanced.
Since there is no evidence upon which I might find for the
plaintiff, the defendant is absolved from the instance and the
plaintiff
is ordered to pay the defendant’s costs of suit.
______________
S.
EBRAHIM, J
On
behalf of Plaintiff:
Adv. M.J. Möller
Instructed
by
Honey
& Partners Inc.
On
behalf of Defendant:
Adv. P.C.F. van
Rooyen
Instructed
by
Naudes
/scd