IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 5229/2018
In the matter between:
GAIL PATRICIA MORRISON Plaintiff
and
MSA DEVCO (PTY) LTD Defendant
JUDGMENT
ANDREWSAJ
Introduction
[1] This is a delictual action instituted by the Plaintiff against the Defendant for
payment of damages for injuries sustained when she, on 6 February 2017 at the
McDonald's restaurant in Milnerton, Western Cape, slipped on a wet floor and fell. The
parties agreed to separate the determination of merits and quantum. The matter
accordingly proceeded on the merits only.
The Pleadings
[2] The Plaintiff alleges that on or about 6 February 2017, the Defendant being the
owner of McDonald's in Milnerton ("the restaurant") had a duty of care towards the
public in general and the Plaintiff in particular, when the Plaintiff slipped on a wet
substance on the floor which caused her to fall. Furthermore, that the incident was
caused solely by the Defendant's breach of the duty of care and / or the Defendant's
causal negligence in that it:
(a) Failed to ensure the safety of any person in particular the Plaintiff entering the
premises;
(b) Failed to ensure the safety of any person in particular the Plaintiff walking in or
at the premises;
(c) Failed to ensure that the floor of the premises was dry and safe to walk on;
(d) Failed to ensure that warning signs were placed to indicate that the floor of the
premises was wet;
( e) Failed to cordon off the section of the floor of the premises that was wet;
(f) Failed to take all necessary steps to avoid incidents such as the one which gave
rise to this action;
(g) Failed to ensure that any person or entity employed alternatively contracted to
carry out any of the duties referred to hereinabove would do so speedily,
properly and effectively. 1
[3] The Defendant admitted that the Plaintiff reported the incident on 6 February
2017 that she had allegedly injured herself on the premises, but pleaded that it has no
1 Particulars of Claim, para 9, pages 5 -6.
2
knowledge of the incident itself. The Defendant denied that it was negligent as alleged
and pleaded that it exercised the standard of care expected of a reasonable restaurant
operator by ensuring that the restaurant was safe for patrons to use.
[4] Furthermore, to the extent that the court may find that the alleged incident
occurred, the Defendant pleaded that the incident was caused by the sole negligence
on the part of the Plaintiff alternatively, that the alleged incident was caused as a result
of the contributory negligence on the part of the Plaintiff. 2
[5] Moreover, the Defendant pleaded that the Plaintiff was reasonably expected:
(a) To keep a proper look out when walking on the premises of the restaurant;
(b) To walk at a reasonable speed / pace in order to avoid slipping and falling on
the floor of the premises of the restaurant; and
(c) To wear appropriate footgear in the circumstances in order to reduce the risk
of slipping.3
The evidence
[6] Mr Peter Mervyn Winspear ("Winspear") and Gail Patricia Morrison ("Plaintiff')
testified in the Plaintiffs case. Ms Sandy Snyman ("Snyman"), Mr Mbuyiseli Duna
("Duna") and Ms Phumza Gcayiya ("Gcayiya") testified on behalf of the Defendant.
2 Plea, paras 9.1.1 - 9.1.3, pages 17 -18.
3 Plea, paras 9.1.4.1-9.1.4.3, page 18.
3
Summation of the relevant evidence
[7] The Plaintiff testified that on 6 February 2017, she met Winspear at the
restaurant as they had planned a private meeting to talk about work-related concerns.
She recounted that they walked into the restaurant. Winspear told her to find a place
to sit while he collected their coffee order. The Plaintiff narrated that as she was
walking, she slipped and hit the ground hard. She described that her right foot slipped
from underneath her. She explained that she had to bring her legs forward. Her left
knee was pulled out of joint and she had to push it back. The Plaintiff stated that she
was in a lot of pain.
[8] The Plaintiff recalled that when she put her hands on the floor she felt that the
floor was damp, which made her realise that the floor had been washed. She was
assisted up from the floor onto a chair and her foot was elevated because it was
swollen. The Plaintiff further testified that she looked around after she had fallen to
see whether there were any yellow warning notices and saw none. She did not recall
seeing or noticing the disclaimer notices on the entrance door of the restaurant. The
Plaintiff was taken out of the restaurant on a stretcher. She underwent an operation
on her right ankle and left knee as she had torn ligaments of the left knee. According
to the Plaintiff she wore comfortable sandals with non-slip ripples. She explained that
she was walking at a normal pace when she fell.
[9] Winspear testified that the Plaintiff worked for his company, Contractokil in a
general administrative position. He recounted that arrangements were made with the
Plaintiff for them to have a private meeting at the restaurant concerning work over a
cup of coffee on 6 February 2017. He explicated that they entered the restaurant
4
through the front entrance and described their passage of travel as mapped out on
Exhibit "A"4. He orated that the Plaintiff was walking in front of him. She was
approximately three to four metres ahead of him.
[1 O] Winspear observed a lady who was holding a mop in the middle of the
floor area close to the McCafe Coffee Bar.5 They proceeded to walk past the lady, en
route toward the back of the restaurant. He was looking towards the Plaintiff when she
slipped and fell. After the Plaintiff had fallen he went to her and noticed that the floor
was wet. He orated that as he looked in the direction from where they had walked, he
noticed that the floor was wet. Win spear stated that he was unable to tell whether the
floor was wet in front of him while he was walking behind the Plaintiff.
[11] After he had gone to the Plaintiff to see how she was, he realised that
she was in a lot of pain and discomfort. He observed that there were no wet floor
notices on the floor. Winspear took photos of the surrounding area to depict the
absence of the signage where the Plaintiff had fallen. Also shown in the pictures were
a cleaning bucket and the approximate distance where he had observed the lady with
the mop. He explained that the lady was far away from the cleaning bucket. He
estimated that the Plaintiff fell six to eight metres away from where the lady with the
mop was standing.
[12] Winspear also recounted that the Plaintiff was assisted and put onto a
stool. According to Winspear, the only other person who witnessed the incident was
4 Exhibit A, page 5, marked with an orange highlighter.
5 Exhibit A, page 5, marked with a pink "X".
5
the lady holding the mop who apologised. He explained that he arranged for the
Plaintiff to be taken by ambulance to Milnerton Medi-Clinic.
[13] Snyman, who was employed as a restaurant manager for Mc Donald's
at the Bellville branch testified that she was at the restaurant where the incident
happened to collect stock. When she arrived, the incident had already occurred. She
explained that she assisted the restaurant manager on duty with completing the forms.
The restaurant manager, one Nombulelo had since left the company.
[14] Snyman explicated that she observed the Plaintiff seated in the dining
area as depicted in photograph marked X, on Exhibit "A". She also gave an exposition
of the general protocols for mopping as per the standard McDonald's procedure and
regulations. Snyman orated that when she arrived at the restaurant, she noticed a wet
floor notice which was placed in the walk path on the floor next to the new McCafe
Coffee Bar. According to Snyman, nobody was busy mopping the floor when she
arrived at the restaurant.
[15] Duna, an employee of the restaurant testified what his duties entailed.
He explained that on the day of the incident, he was engaged in maintenance duties
and changing bins. Whilst proceeding towards the lobby he was approached by a
customer who had informed him that a lady had fallen. He, upon investigating, noticed
the Plaintiff sitting on a chair. He orated that there was a man assisting the Plaintiff.
Duna did not engage with the Plaintiff and went to the manager on duty, Ms Phumza
Gcayiya to report the incident.
[16] Duna further stated that there were two wet floor notices, one which was
approximately 3 meters away from where the Plaintiff was seated. The other wet floor
6
notice was close to the entrance of the restaurant, which according to Duna, the
Plaintiff ought to have noticed when she entered the restaurant through the front
entrance.
[17] Gcayiya, narrated that she was the shift manager of the restaurant. She
expounded on the McDonald's cleaning procedures and protocols. She testified that
on the day of the incident she was called by Duna who informed her that a customer
had fallen. Gcayiya accompanied Duna to investigate the report where she observed
the Plaintiff lying on her side in the position reflected in the photo exhibit6• She did not
approach the Plaintiff and made an about tum to call the manager in the office. They
then both went to where the Plaintiff was lying.
[18] Gcayiya stated that she did not speak to the Plaintiff and observed the
Plaintiff being taken out on a stretcher to the ambulance. According to Gcayiya there
were no wet floor notices in the area where the Plaintiff was lying. The wet floor notices
were positioned as indicated on Exhibit A.7
Common cause facts
[19] The following facts are common cause:
(a) The Defendant at all material times owned and operated a McDonald's
franchise restaurant situated within the jurisdiction of this court.
(b) On 6 February 2017 the Defendant was the lawful beneficiary and risk bearing
occupier/ possessor of the premises on which the restaurant is located.
6 Exhibit "A", page 2.
7 Exhibit A, page 14, marked Zl and Z2.
7
(c) At all material times the Defendant has a legal duty to exercise the standard of
care expected of a reasonable restaurant operator in the circumstances by
ensuring that the premises of the restaurant were safe for patrons to use.
(d) There was a disclaimer notice at the entrance of the restaurant.
(e) On 6 February 2017, the Defendant was duly represented by its employees
acting in the course and scope of their employment with the Defendant.
Issues in Dispute
[20] The following issues are the issues in dispute as identified by the parties:
(a) That on or about 6 February 2017, and at or near the restaurant, the Plaintiff
was present/ attended at or was injured in the alleged incident on the premises
of the restaurant;
(b) That if it is found that the Plaintiff was indeed inside the restaurant on 6
February 2017, the Plaintiff disputed that she was negligent as alleged or at all;
(c) That the Defendant breached the duty of care as alleged of a reasonable
restaurant operator;
(d) The parties disagree that the Plaintiff fell on a surface inside the restaurant or
on the premises where the restaurant is located;
(e) That the Defendant failed to ensure the safety of any person;
(f) That in the event that it is found that the Plaintiff was indeed present inside the
restaurant on 6 February 2017 which is denied and that she did indeed fall to
the floor which is also denied, then the parties disagree that the Defendant
failed to ensure that the floor of the restaurant was dry and safe to walk on at
the alleged time when the alleged incident occurred;
8
(g) If it is found that the Plaintiff did attend at the restaurant on 6 February 2017,
the Plaintiff would have seen the disclaimer notice, read and understood the
content thereof before entering the restaurant;
(h) That the Defendant failed to ensure that the warning signs were placed to
indicate that the floor of the restaurant was wet at the alleged time when the
alleged incident occurred;
(i) That the Defendant failed to ensure that the warning signs would as a matter of
routine always be placed on the floor of the restaurant, if it was wet and unsafe;
G) That the floor of the restaurant was wet at the alleged time when the alleged
incident occurred and that the Defendant, accordingly had a duty to cordon off
the section of the floor of the premises that was allegedly wet at the alleged
time when the alleged incident occurred;
(k) That the Defendant failed to take all expected steps of a reasonable restaurant
operator to avoid the alleged incident from taking place and
(I) That the Defendant failed to ensure that any person or entity employed,
alternatively, contracted carried out any of the duties referred to hereinabove
would do so speedily, properly and effectively.
Issues to be determined
[21) The crisp issues to be determined is whether, if it is found that the
Plaintiff was in fact present at the restaurant, the Defendant wrongfully and negligently
caused the Plaintiff to suffer damages, and, if so, whether the alleged damages were
partially caused as a result of the alleged contributory negligence of the Plaintiff by
apportioning the damages to the parties in their respective degrees, and a
9
determination as to whether the disclaimer notice excluded the Defendant from being
liable to the Plaintiff as alleged, or at all for the alleged damages the Plaintiff suffered.
Was the Plaintiff at the restaurant?
[22] As a starting point, it would be prudent to deal with the denial by the
Defendant that the incident happened at the restaurant or at all. Duna's evidence was
that he saw the Plaintiff after the incident had allegedly taken place, sitting on the first
white chair as depicted in the photo exhibit.8 It was Duna who informed Gcayiya about
the incident. On Gcayiya's version, Duna accompanied her to the existing dining area
after he had reported the fall to her. It can therefore safely be accepted that the Plaintiff
was at the restaurant on the day in question and as such the Defendant's denial as
pleaded cannot be sustained, as the Defendant's witnesses places the Plaintiff inside
the restaurant. The next question to be answered is whether she in fact slipped and
fell in the restaurant as alleged.
Did the incident occur?
[23] The Defendant challenged the allegation that the Plaintiff fell in the
restaurant, based on Duna's observation as to where he saw the Plaintiff after he was
alerted to the incident by another customer. It is the Defendant's hypothesis that the
Plaintiff had to move from the stool where she had been sitting to the floor ( or back to
the floor) where she was lying on her side. When Gcayiya saw the Plaintiff for the first
time, she was lying on her side at the scene of the incident.
8 Witness Bundle, Exhibit A, page 2.
10
[24] The Defendant however postulates the view that the different immediate
observations by Duna and Gcayiya of the positioning of the Plaintiff at the location
where the incident is alleged to have occurred in the restaurant remains unexplained
and casts doubt on the reliability and credibility of the Plaintiffs evidence. Although the
Defendant has requested the court to be mindful that the Plaintiff was present in court
when Winspear testified, it does not detract from the fact that Duna and Gcayiya's
account of where the Plaintiff was when they came to the scene does not accord with
each other.
[25] The fact that Duna says he observed the Plaintiff sitting on a stool cannot
be considered in isolation, bearing in mind that he was alerted by a customer that the
someone had fallen. The dictionary meaning of "fall" could have a variety of meaning
which may include inter a/ia, to drop or descend under force of gravity, as to a lower
place through loss or lack of support. It could also mean to come or drop down
suddenly to a lower position, especially to leave a standing or erect position suddenly,
whether voluntary or not.
[26] It is unrefuted that the Plaintiff was taken out of the restaurant on a
stretcher. This it was argued, casts significant doubt on Duna's evidence that she was
sitting on the chair after the incident had been reported to him, more especially since
he testified that the customer reported that someone had fallen. On Duna's version,
the Plaintiff would have had to walk or crawl from the chair to where she was lying on
the floor after sustaining the injuries. To my mind, this proposition is not only
improbable but also untenable as the nature of her injuries, suggests that she would
not have been able to navigate her way from floor to chair and vice versa unassisted.
11
[27] There is a plethora of case law that deals with witnesses perceiving and
interpreting events differently based on their personal perspectives, experiences or
biases. This is especially common in cases where multiple parties may recount the
same event in ways that conflict or diverge. This however, must be viewed within the
factual matrix of this matter as none of the Defendant's witnesses observed the
incident and essentially testified about their observations after learning about the
alleged fall of the Plaintiff. They all noticed the Plaintiff at different intervals. Inasmuch
as it was argued that Winspear's evidence was evasive and overly defensive, there is
no evidence to gainsay the evidence of the Plaintiff and Winspear that the Plaintiff fell
inside the restaurant, more especially as Duna and Gcayiya's evidence do not align
with each other. The Defendant's witnesses are in my view unable to assist the court
in determining the actual conditions inside the restaurant when the incident occurred.
[28] I am therefore satisfied that the Plaintiff fell inside the restaurant. This
conclusion is further concretised by the description given by the Plaintiff of the extent
of her injuries after falling. In this regard she stated that the position of her legs was
such that she had to bring her legs forward because her one knee was out of joint.
Logical reasoning presupposes that if she had been mobile, there would have been
no need for her to be carried out of the restaurant on a stretcher and dispels the version
of Duna regarding where he had initially seen the Plaintiff immediately after being
informed by a customer that someone had fallen.
Negligence
[29] It is trite that a Defendant is negligent if a reasonable person in his
position would have acted differently and if the unlawful act causing damage was
12
reasonably foreseeable and preventable.9 Holmes JA, in Kruger v Coetzee,10
formulated the test to be applied on negligence elucidated the proper approach for
establishing the existence or otherwise of negligence as follows:
'For the purposes of liability culpa arises if-
( a) 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 causing him patrimonial
loss; and
(ii) would take reasonable steps to guard against such occurrence;
and
(b) the defendant failed to take such steps.·
(30] The court in Cenprop Real Estate (Pty) Ltd and another v
Holtzhauzen 11("Cenprop'?, referred to the test for negligence as distilled in Kruger v
Coetzee and remarked that:
'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. '12
Duty of care
(31] The Plaintiff pleaded that the Defendant had a duty of care towards the
public in general and the Plaintiff in particular:
9 See also Sea Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage (Pty) Ltd and Another
[2000] I All SA 128 (A) at para 21 ' ... in the final analysis the true criterion for dete,minin g negligence was
whether in the particular circumstances the conduct complain ed of fell short of the standard of the reasonable
person.'
10 1966 (2) SA 428 (A) at 430E-F.
11 2023 (3) SA 54 (SCA) at para 17.
12 Kruger v Coetzee 1966 (2) SA 428 (A) Ibid at 430E-G.
13
(a) To ensure the safety of any person entering the premises;
(b) To ensure the safety of any person walking in or at the premises;
(c) To take all necessary steps to avoid incidents such as the one which gave rise
to this action, the full details of which are set out hereunder;
(d) To ensure that any person or entity employed, alternatively contracted, to carry
out any of the duties referred to hereinabove, would do so speedily, properly
and effectively .13
[32] The Defendant admitted that at all material times the Defendant had a
legal duty to exercise the standard of care expected of a reasonable restaurant
operator in the circumstances by ensuring that the premise of the restaurant was safe
for patrons to use.14 It is trite that the onus rests on the Plaintiff to prove that the
Defendant failed to comply with this duty. The Defendant submitted that it took all
reasonable steps to ensure that the restaurant was safe and that it complied with its
legal duty towards the patrons and ensured that the necessary and required measures
are in place.
[33] The Plaintiff however contended that the floor of the restaurant was not
safe for use by customers. In this respect, it was argued that the floor was made unsafe
by the Defendant's employee in the performance of her cleaning duties. It was
submitted that although the facts of the matter in casu is distinguishable from other
case law regarding spillages on shop floors, the same principles apply.
13 Particulars of Claim, para 5, page 4.
14 Defendant's plea, para 3.8, pages 15 -16.
14
[34] There is an abundance of case law oft-referred to as so-called "slip and
trip" matters, dealing with the issue of liability on the part of shop-keepers and building
owners. In the matter of Probst v Pick n Pay Retailers (Pty) Ltd 15 the court held a
supermarket liable for injuries sustained by a customer who slipped on a wet floor,
emphasising the owner's duty to ensure the safety of patrons by taking reasonable
steps to prevent such accidents.
[35] It was argued that the Plaintiff in casu has provided sufficient evidence
to prove that the cause of her fall was due to negligence on the part of the Defendant.
In amplification it was submitted that had the Defendant's employee ensured that the
wet floor notices were placed on the floor, the Plaintiff and Winspear would have
noticed same. Ms Snyman and Ms Gcayiya conceded that the floor inside the
restaurant will be slippery if it is wet. It therefore follows that cleaning protocols ought
to be followed strictly.
[36] The cleaning protocols as per the evidence of Snyman, becomes a
crucial starting point. She testified that a wet floor sign will be placed at the beginning
of the section where a staff member is going to mop, and the second wet floor sign will
be placed at the end of the section where the staff member is busy mopping at the
time. The staff member will then mop the floor using an 8-figure motion. Only when
the floor is dry, then the staff member will move the first sign and place it further down
to mop the next section of the restaurant. This protocol was confirmed by Gcayiya
during her testimony. She explicated that the purpose of cordoning off the area is to
prevent customers from slipping.
15 [1998] 2 All SA 186 (W) at 197.
15
[37] Winspear testified that there was a lady standing with a mop near the
coffee bar they walked past. It was argued that this confirms the evidence of Duna and
Gcayiya regarding the placement of the wet floor signs Winspear denied there were
any wet floor signs in place. Winspear's evidence was that he took the photo in front
of the lady cleaning who was to his guestimate, approximately two meters behind him.
[38] The Defendant claims that because the photograph was taken from that
angle, the warning signs are not visible. The Defendant argued that Winspear's
evidence that there were no warning signs, is not supported by the Plaintiff as she did
not remember much details, which included not observing the disclaimer notice. The
Defendant submitted that the Plaintiff did not testify that she saw the floor being wet
and failed to present any evidence that the floor was in fact wet. The Defendant
challenged the reliability of the evidence presented in the Plaintiffs case and
suggested that the Plaintiff failed to present any evidence that the floor was in fact wet
but rather assumed as much by reason of her alleged slipping and falling on the floor
of the restaurant.
[39] This argument does not harmonise with the Plaintiffs evidence as she
testified that after she fell, she felt that the floor was damp. It was argued that the
Plaintiff, despite having a different recollection of all the events of the day, testified that
there were no warning signs on the entire floor of the restaurant. This is underscored,
they argued, by the fact that Winspear did not notice any other customers compared
with the Plaintiff who on the other hand noticed plenty of customers at the service area
situated close to the entrance of the restaurant. Furthermore, they asserted that the
evidence of both the witnesses called to testify in the Plaintiffs case is not reliable
because according to the Plaintiffs evidence, she did not notice the lady standing at
16
the coffee station with a mop as per the observations of Winspear, moments before
she fell.
[40] It is the Plaintiff's contention that Snyman, Duna and Gcayiya gave
contradictory evidence regarding the presence and placement of the wet floor notices.
It is uncontroverted that they all became aware of the incident at different times and
saw the Plaintiff at different times after the occurrence of the incident. The Plaintiff
argued that notwithstanding the contradictions in their evidence, it is evident that no
wet floor notices were placed in the existing dining area even after the incident had
occurred.
[41] The Plaintiff further contended that the wet floor notice (s) which might
have been put on the floor after the incident had occurred was placed at a considerable
distance from where the incident had occurred and was not placed in the existing
dining area. The Plaintiff asserted that the employees of the Defendant did not inspect
the floor to determine whether it was wet or dry. They did not know what caused the
Plaintiff to end up on the floor. They were unable to testify whether the wet floor notices
were placed on the floor when the incident occurred.
[42] It is manifest that there are mutually destructive versions insofar as the
placement of the warning signs. It is settled law that in instances where there are two
diametrically opposing versions the court must be satisfied upon adequate grounds
that the story of the litigant upon whom the onus rests is true and the other false or
17
mistaken.16 The correct approach to be adopted when dealing with mutually
destructive versions was briefly set out in National Employers General Insurance
Company v Jagers17 which was approved in seminal judgment of Stellenbosch
Famer's Winery Group LTD and anotherv Martell et Cie and Others18•
[43] The Defendant asserted that Duna and Gcayiya's evidence regarding
the placement of warning signage and where and how the Plaintiff was found when
they first saw her at the scene of the alleged incident, coupled with the absence of
CCTV footage, presented as evidence during the trial that may have been conclusive
evidence and determinative of the factual issues in dispute, casts sufficient doubt on
the Plaintiff's evidence which they argued, ought to be rejected. This they say, must
be viewed in conjunction with the Plaintiff's evidence as she remembers very little of
the day of the alleged incident.
[44] In evaluating the evidence, I am satisfied that the Plaintiff and Winspear
corroborated each other in material respects. In this regard, it is unrefuted that they
attended the restaurant on the day of the incident to have a private discussion on
issues relating to work and to enjoy coffee. The evidence regarding the placement of
the wet floor notices are contradictory and to my mind, the place where the lady was
standing and holding a mop, namely, in the middle of the floor area close to the McCafe
16 National Employers Mutual General Insurance Association v Gany 1931 AD 187 at 199; Cloete v Prasa [2024]
4 All SA 391 (WCC) (10 September 2024) paras 48 -49.
17 1984 (4) SA 437 (E) at 440E-G, 'Where there are two mutually destructive versions the party can only
succeed if he satisfies the court on a balance of probabilities that his version is true and accurate and therefore
acceptable, and the other version advanced is therefore false or mistaken and falls to be rejected. In deciding
whether the evidence is true or not the court will weigh up and test the plaintiff's allegations against the
general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with
the consideration of the probabilities of the case, and if the balance of probabilities favours the plaintiff, then
the court will accept his version as probably true.'
18 2003 (1) SA 11 (SCA).
18
Coffee Bar, approximately 6 meters from where the Plaintiff fell, suggests that it is
more probable that the wet floor notices were not in the vicinity where the Plaintiff had
slipped and fallen. This is confirmed by the Defendant's own witness Gcayiya who
testified that there were no wet floor notices in the area where the Plaintiff was laying.
[45] According to the Plaintiff was that she was heading towards the back of
the restaurant in the existing dining area when she slipped and fell. Upon inspecting
the floor, after the fall, the Plaintiff discovered that it was damp which made her realise
that the floor had been cleaned. Furthermore, there is no contrary evidence that the
Plaintiff was not walking at a normal pace prior to slipping and falling. She had to be
picked up from the floor and placed on a chair with her foot elevated after the incident.
She was removed from the restaurant on a stretcher and transported in an ambulance
to Milnerton Mediclinic. The lady holding a mop noticed the incident, but was not called
to testify. No other McDonald's employee witnessed the incident.
[46] The evidence of Plaintiff and Winspear is uncontested. Snyman, Duna
and Gcayiya gave contradictory evidence regarding the presence and placement of
the wet floor notices. Considering that they became aware of the incident at different
times and saw the Plaintiff at different times after the occurrence of the incident the
contradictions in their evidence is understandable. However, the reliability of the
evidence on a balance of probabilities, favour the Plaintiff and Winspear's version that
there were no wet floor notice(s) placed in the existing dining area even after the
incident had occurred and any notices there may have been were placed at a
considerable distance from where the incident occurred.
19
[47] Thus, it can be safely accepted, on a balance of probabilities that
because there were no wet floor notices in the existing dining area, there was no
indication that the floor had been mopped or that the floor was wet and/or damp. The
evidence suggested that it was not possible to ascertain whether the floor was wet by
merely looking at it.
[48] Gamble J, in the matter of Williams v Pick 'n Pay Retailers (Pty) Ltcf 9
("Williams'?, considered the issues grappled with in Cenprop where the SCA found
that the building owner was liable for the shopper's injuries notwithstanding the
presences of warning signs cautioning the Plaintiff of wet floors:
'In Cenprop the facts were that it was a rainy day and the plaintiff slipped on a puddle of
water in a public area inside a shopping mall notwithstanding the presence of warning
signs cautioning her of wet floors. It was common cause that rainwater had most likely
been transported into the mall through the pedestrian traffic of other shoppers and had
been there some while. Further, it was a situation where it was known that the tiles used
in the mall area were slippery underfoot when wet. Ultimately, the SCA found that
Cenprop, the building owner, was liable for the shopper's injuries.'
[49] Gamble J, also referred to the seminal judgment of Probst (which has
been referred to with approval in Cenprop) insofar as it distilled a building owner's
responsibility towards the welfare of shoppers utilising its premises. More particularly,
in relation to the sufficiency of evidence which needs to be adduced to establish
negligence on the part of the shopkeeper. In this regard the court held the following in
Probst 20:
19 (8377/2019) [2023) ZAWCHC 229 (1 September 2023), at para 23.
20 At 197g -198c
20
"(l)n such a case the plaintiff generally cannot know either how long the slippery spillage
had been on the floor before it caused his fall, or how long was reasonably necessary,
in all of the relevant circumstances (which must usually be known to the defendant), to
discover the spillage and clear it up. When the plaintiff has testified to the circumstances
in which he fell, and the apparent cause of the fall, and has shown that he was taking
proper care for his own safety, he has ordinarily done as much as it is possible to do to
prove that the cause of the fall was negligence on the part of the defendant who, as a
matter of law, has the duty to take reasonable steps to keep his premises reasonably
safe at all times when members of the public may be using them ... It is therefore
justifiable in such a situation to invoke the method of reasoning known as res ipsa
loquitur and, in the absence of an explanation from the defendant, to infer prima facie
that a negligent failure on the part of the defendant to perform his duty must have been
the cause of the fall. As explained in Arthur v Bezuidenhout and Mieny {1962 (2) SA 566
(A)] this does not involve any shifting of the burden of proof onto the defendant: however,
it does involve identifying the stage of the trial at which the plaintiff has done enough to
establish, with the assistance of reasoning on the lines of res ipsa loquitur, a prima facie
case of negligence on the part of the defendant, so that unless the defendant meets the
plaintiff's case with evidence which can serve, at least, to invalidate the prima facie
inference of negligence on his (the defendant's) part, and so to neutralize the plaintiff's
case, judgment must be entered for the plaintiff against the defendant. In this situation
the defendant does not have to go so far as to establish on the balance of probabilities
that the accident occurred without negligence on his part: it is enough that the defendant
should produce evidence which leads to the inference that the accident which caused
harm to the plaintiff was just as consistent with the absence of any negligent act or
omission on the part of the defendant as with negligence on his part. The plaintiff will
then have failed to discharge his onus, and absolution from the instance will have to be
ordered."
[50] The court in Probst elucidated that the Defendant has as a matter of law
the duty of care to take reasonable steps to keep his premises reasonably safe at all
times when members of the public may be using them. To my mind, Probst provides
the clearest of guidelines on the factors to be considered to prove that the cause of
the fall was as a consequence the Defendant's negligence in the absence of an
explanation from the Defendant that it has taken reasonable steps to keep the
21
premises reasonably safe. In those circumstances it would be justifiable to invoke the
method of reasoning known as res ipsa /oquitur. Therefore, in the absence of an
explanation from the Defendant, it could be inferred, prima facie, that a negligent
failure on the part of the Defendant to perform his duty must have been the cause of
the fall. The doctrine of res ipsa /oquitur serves as a 'guide to help identify when a
prima facie case is being made out. '21
[51] The doctrine of res ipsa loquitur has been succinctly summarised in
Goliath v MEC for Health, Eastern Cape22 as follows:
'[10] Broadly stated, res ipsa loquitur (the thing speaks for itself) is a convenient Latin
phrase used to describe the proof of facts which are sufficient to support an
inference that a defendant was negligent and thereby to establish a prima facie
case against him ... It is not a presumption of law, but merely a permissible
inference which the court may employ if upon all the facts it appears to be
justified (Zeffertt & Paizes The South African Law of Evidence 2 ed at 219). It is
usually invoked in circumstances when the only known facts, relating to
negligence, consist of the occurrence itself ... where the occurrence may be of
such a nature as to warrant an inference of negligence. The maxim alters neither
the incidence of the onus nor the rules of pleading ... it being trite that the onus
resting upon a plaintiff never shifts. '23
[52] In casu, as earlier stated, the only person that could have shed light on
whether the cleaning protocols were strictly adhered to was not called to give
evidence. This is further underscored by the unrefuted evidence that this lady with the
mop, according to Winspear apologised, after the incident occurred. It is noteworthy
that the evidence of Winspear is that the restaurant had glazed tiles and that he could
21 Ratcliffe v Plymouth and Torbay Health Authority [1998] EWCA Civ 2000 (11 February 1998); see also
Checkers Supermarket v Lindsay 2009 (4) SA 459 (SCA) page 461.
22 2015 (2) SA 97 (SCA) at para [10].
23 See also Medi-Clinic ltd v Vermeulen2015 (1) SA 241 (SCA)page 251 at para 27.
22
only see a solid wet section when he walked to take the photograph and looked back.
Thus, on a balance of probabilities, a wet floor would not have been obviously
noticeable if there were no warning signs.
[53] Furthermore, much of the challenges raised by the Defendant is based
on speculative hypothesis, on the assumption that the cleaning protocols were strictly
adhered to. In applying the considerations set out in Probst the Plaintiff in casu
testified as to the circumstances in which the she fell and the apparent cause of the
fall. In am satisfied that the Plaintiff has shown that she had taken proper care for her
safety in the absence of any evidence in rebuttal in this regard.
[54] Consequently, in light of the inconsistencies regarding the placement of
the warning notices and/or absence thereof, the failure of the Defendant to call the
actual person who mopped the floor to give evidence, to my mind, would justify the
invocation of the doctrine of res ipsa /oquitur. I am therefore satisfied that a prima facie
case has been made out that the cause of the Plaintiff's fall was as a consequence of
a negligent failure on the part of the Defendant to perform its duty. Should I be wrong
in reaching this conclusion, it behoves me to consider whether the incident was also
caused as a result of the contributory negligence on the part of the Plaintiff.
Contributory negligence
[55] In the alternative, the Defendant pleaded that in the event that the court
finds that the conduct of the Defendant was negligent and that the alleged incidence
was caused as a result of the conduct of the Defendant, that the alleged incident was
23
also caused as a result of the contributory negligence on the part of the Plaintiff. 24
The Defendant submitted that the Plaintiff's fall in the restaurant was caused through
her sole negligence by not keeping a proper look out, walking at a reasonable speed
or pace and not wearing the appropriate footgear to reduce the risk of falling.
[56] The Defendant asserted that on the Plaintiff's own evidence, it is
apparent that she could not remember much from the day of the incident. She was not
very observant of her surroundings, to the extent that she testified that she doesn't
know what Winspear did or what he saw prior to the alleged incident. The Plaintiff did
not see the lady with the mop when she and Winspear entered the restaurant, she did
not see the disclaimer notice when she entered and neither did she see the wet floor
signs. Her evidence was that her attention was fixated on finding a place to sit. The
Defendant therefore submitted that from her own testimony and version of events, the
only inference that can be drawn is that the Plaintiff walked around the restaurant
focussed solely on selecting a seat, without keeping a proper lookout.
[57] They reason that if the floor in the existing dining area was indeed wet
and floor signs were placed on the floor, the Plaintiff would not have seen them. They
further suggest that it is most likely that only Winspear would have seen them because,
by their own assertion, the Plaintiff, save for noticing that there were many other
customers at the main service counter, saw nothing at all and then fell in the
restaurant. Furthermore, the Plaintiff's remark that she is now more conscious of her
surroundings, presupposes, they argue that when she fell she was not attentive. This
24 Plea, para 9.1.6. page 19.
24
they say is also born out by her failure to notice the disclaimer sign or the lady with the
mop.
[58] The Defendant argued that if Winspear's evidence is to be accepted then
this also leads to the conclusion that if she had kept a proper look-out then she would
have also noticed the lady holding the mop and would then reasonably have been
expected to adjust the speed at which she was walking, which she did not do, thus
causing her to slip and fall. It was further submitted that by virtue of the fact that
Winspear was walking behind the Plaintiff at the time without also slipping and falling,
he kept a proper look-out and adjusted the speed at which he was walking accordingly.
[59] I pause to mention that the Defendant highlighted that the Plaintiff
testified that she wore slip-on sandals with non-slip ripples and that the shoes were
fairly new. Winspear on the other hand, was wearing rubber soled shoes. He followed
the same pathway and did not fall. This argument in my view, is without substance,
as the unrefuted evidence is that the wet floor surface was not noticeable. The cause
of the fall was not established to be directly related to the footwear of the Plaintiff,
which in my view, was not the cause directly or otherwise of the Plaintiffs fall.
Therefore, I am not persuaded that the Plaintiff was solely negligent or contributed to
the negligence by failing to wear appropriate footgear in the circumstances in order to
reduce the risk of slipping.
[60] I am also not persuaded that the Plaintiff was solely negligent or
contributed to the negligence by failing to keep a proper look out when walking on the
premises of the restaurant. To cement this finding the evidence on record is that the
Plaintiff and Winspear previously patronised that restaurant which suggest that they
25
were familiar with the layout thereof. The Plaintiff knew exactly where she was going
and wasn't expecting to encounter a wet floor surface whilst walking especially as the
place where she had slipped was a walk way which patrons frequenting the restaurant
would use. There is no suggestion or evidence that the Plaintiff did anything other than
what a reasonable restaurant goer would do, when looking for seating.
[61] Neither is there any evidence to suggest or prove that the Plaintiff
walked at an unreasonable speed or pace in order to avoid slipping and falling on the
floor of the restaurant as pleaded. Her evidence was that she walked at a normal pace.
There was no haste in her getting seating and there is no evidence to suggest that she
was in a hurry. Again, her evidence is that she walked and then found herself on the
floor, in circumstances where the glaze on the floor tile would not have made any water
or spillage noticeable even if she had been looking down. There is no evidence to
gainsay the evidence of Winspear in this regard. As such, I am not persuaded that the
Plaintiff was solely negligent or contributed to the negligence by the manner in which
she walked.
[62] It therefore beckons the question whether the disclaimer notice would
absolve the Defendant from any liability in these circumstances.
Disclaimer Notice
[63] The Defendant pleaded that the Plaintiff entered the premises of the
restaurant at her own risk by disclaiming any liability for damages which she may
sustain whilst on the premises. The Defendant is therefore, relying on the disclaimer
notice to escape liability for the Plaintiff's injuries. The Defendant submitted that the
26
disclaimer notice located on the front entrance door of the restaurant is quite
conspicuous and would have come to the Plaintiff's attention as the Plaintiff confirmed
accessing the restaurant through the front entrance. It is common cause that the
disclaimer notice read as follows:
"ALL PERSONS ENTERING McDONALD'S AND USING ITS FACILITIES,
INCLUDING DRIVE-THROUGH AND PARKING AREAS, DO SO
ENT/RELY AT THEIR OWN RISK. NEITHER McDONALD'S NOR IT'S (sic)
SUPPLIERS, EMPLOYEES AND OR REPRESENTATIVES SHALL BE
RESPONSIBLE AND OR LIABLE IN RESPECT OF ANY THEFT AND OR
LOSS AND OR DAMAGES SUSTAINED TO PROPERTY AND OR THE
PERSONS OF ANY CUSTOMER AND OR EMPLOYEE OF McDONALD'S
WHILST ON THE PREMISES FOR WHATSOEVER REASON. RIGHT OF
ADMISSION RESERVED."
[64] The Defendant submitted that the Plaintiff entered the restaurant at her
own risk and indemnified the Defendant against any liability for damages which she
might have sustained whilst on the premises to her person. It was asserted that the
Plaintiff by entering the premises of the Respondent, voluntarily agreed to aforestated
terms of the disclaimer notice.25 The Defendant pleaded that the Plaintiff was warned
by a sign displayed at the entrance to the restaurant that the floors inside may be
slippery when wet and she voluntarily assumed the risk of suffering injury as a result
thereof by entering the restaurant.26
[65] Under cross-examination the Plaintiff admitted that the wording of the
disclaimer notice is correct; that if she enters the restaurant and an accident happens
then she is liable but she did not notice the disclaimer notice. The Plaintiff and
25 Defendant's plea, para 9.1.7, pages 19 -20.
26 Defendant's plea, para 9.1.8, page 20.
27
Winspear from their testimonies, also frequently visited the restaurant to attend private
meetings.
[66] The Defendant argued that the damages covered by the disclaimer
refers to 2 concepts. One being the damages suffered as a harm caused to the private
property of a person and the other damage caused to the person. This they submitted
is so because of the use of the word "OR" between the identification of what damages
the defendant is indemnified against liability. The user of the words "PERSONS" they
say can only have one interpretation in the manner in which the sentence is
constructed. That is because in our common law of delict, originally all person would
have a remedy to claim damages if an injury or harm is caused to either his property
or his person. The word harm is not necessary if the word "damages to persons" are
used disjunctively from an earlier reference to an injury/ harm caused to property.
[67] The common law remedy, such as action legis aquiliae was initially only
premised to address injuries to property and or the person (patrimonial losses). The
use of the word "person" in our common law of delict means the bodily integrity of a
person. This is evident from the judgment Swinburne v Newbee Investments (Pty)
Ltd 27 ("Swinburne'? where the court explains what is meant with the word injury in a
27 2010 (5) SA 296 (KZD) at para 35:
'{35} I am not satisfied that a reasonable person reading this clause would understand the reference to
'any damage' as extending to a claim for damages arising from personal injury. It appears in a clause that
in other respects, both preceding and following, is clearly dealing only with loss or damage to physical
property. There is no word that refers in clear terms to harm to the person as would have been the case
had the word "injury" or "personal injury" been used. Whilst a negligent act or omission may cause both
damage to property and physical injury to the person the true question in construing this clause is whether
the reference to "any damage" extends to the latter. In my view the clause is perfectly capable of a
construction that confines its scope to damage to property. The clause is capable of a construction that
confines its scope of operation to situations causing damage to property and that construction is
consistent with the other provisions of the clause and the lease as a whole. There is no indication anywhere
in the lease that what is being sought is an exemption from liability for causing personal injury arising
from negligence. There is also no exclusion of the landlord's obligation to make the premises safe for those
residing in and visiting them. Neither 'negligence' nor 'injury' is used in any clause. At best for Newbee
28
disclaimer notice by using the words "harm" or damages to a "person" as being a bodily
injury.
[68] The Defendant furthermore submitted that the court is bound by the full
court decision of City of Cape Town v Rhoode 28 where the court found difficulty with
the absence of the word "injury" in two disclaimer notices and found that the use of the
word "risk" was not sufficient to include damages arising from bodily injuries unless
the word "injury" to the body was specifically referred to in the notice. It bears
mentioning that the facts in casu are however distinguishable.
[69] The Plaintiff could not remember seeing the notice on the entrance door.
The Plaintiff did however read the wording of the disclaimer notice during her evidence
and when asked if she understood the content of the notice she answered in the
affirmative. In this regard, the Defendant argued that from the Plaintiffs evidence it
was clear that she understood the wording· of the disclaimer, is familiar therewith and
would have accepted the risk of harm to her person or bodily integrity and liability.
[70] The Defendant argued that the doctrine of quasi mutual consent finds
application in these circumstances rendering the disclaimer valid and enforceable thus
excluding any liability on the part of the defendant for "damages" caused to her
"person" or body when she entered the restaurant. In this regard, the Defendant
referred the court to Naidoo v Birchwood Hotel 29
Investments the clause is ambiguous and applying the principles discussed earlier in this judgment it falls
to be construed against Newbee Investments.'
28 [20 I 8] ZA WCHC 49.
29 2012 (6) SA 170 (GSJ)
29
' ... In order to rely on quasi-mutual consent, a party has to demonstrate that it
took reasonably sufficient steps to bring these terms to the notice of the other
party and was therefore entitled to assume that by his conduct in going ahead
notwithstanding the disclaimer, the other party had assented to the terms thereof.
This is the doctrine applicable in the so-called ticket cases where terms and
conditions are to be found on the tickets. The purchaser is assumed to have
assented to the conditions once he or she purchases a ticket. 30'
[71] The seminal judgment of Durban's Water Wonderland (Pty) v Botha
and Another31, deals with the interpretation of an exemption clause. In this matter the
SCA essentially dealt with the inquiry to be undertaken whether the Defendant was
reasonably entitled to assume from the Plaintiffs conduct in proceeding to enter the
premises that he or she assented to the terms of the disclaimer or was prepared to be
bound by them without them.
[72] The Defendant also referenced that matter of Lombard v McDonald's
Wingtip32 ("Wingtip"), where the court dealt with a similarly worded disclaimer notice
displayed at the entrance of the restaurant. The court in Wingtip found that the
disclaimer notice stands to be applicable and enforceable despite the Plaintiffs
testimony that she could not remember if she did take notice of the disclaimer notice
on entering the premises. 33 The Plaintiff in the Wingtip judgment was refused leave
30 Durban's Water Wonderland case supra; Sonap Petroleum (SA) (Pty) Ltd v Pappadogianis 1992
(3) SA 234 (A)
31 1991 (1) SA 982 (SCA) at 991 C.
' ... [the] answer depends upon whether in all the circumstances the [defendant] did what was "reasonably
sufficient" to give patrons notice of the terms of the disclaimer. The phrase "reasonably sufficient" was used
by Innes CJ in Central South African Railways v Mclaren 1903 TS 727 at 735. Since then various phrases having
different shades of meaning have from time to time been employed to describe the standard required. {See
King's Car Hire (Pty) Ltd v Wakeling 1970 (4) SA 640 (N) at 643G-644A.) It is unnecessary to consider them. In
substance they were all intended to convey the same thing, viz an objective test based on reasonableness of
the steps taken by the proferens to bring the terms in question to the attention of the customer or patron.'
32 2022 JOL 57 57103(GP) at para I 04.
33 Ibid, para 104 ' ... It is my considered view that this court's interpretation as to the contents of the disclaimer
notice is in harmony with the approach envisaged in Endumeni above. As already stated above and contrary
30
to appeal and then applied to the SCA for leave to appeal. The SCA dismissed the
Plaintiff's / Applicant's application for leave to appeal, stating that there is no
reasonable prospect of success on appeal or any other aspect that is of significance
warranting an appeal. The Defendant argued that this finding by the SCA is an
endorsement of the enforceability of the disclaimer notice in casu the Defendant relies
on in casu.
[73] The Defendant submitted that the Consumer Protection Act 34 ("the
CPA"), applies to the relationship between parties, in particular, section 49(3) which
provides that a provision, condition or notice must be written in plain language. The
Defendant submitted that the wording of the disclaimer notice complies with the
provisions of sub-sections 49(3) to (5) of the CPA. 35 The disclaimer was written in plain
language and the fact, nature and effect of the notice is drawn to the attention of the
customer in a conspicuous manner and form that is likely to attract the attention of an
ordinary alert customer.
to the plaintiff's contention, the contents of the disclaimer notice do not contravene any relevant subsection
of section 49 of the CPA. This court makes the above findings despite the plaintiff's testimony that she could
not remember if she did take notice of the disclaimer notice on entering the premises. In my view, just on the
basis of this evidence, it becomes inexplicable how the plaintiff would still want to appropriate and avail to
herself any possible relief that may flow from any issue arising from the disclaimer notice, given that it is her
own version that she never had any regard whatsoever to the disclaimer notice. My above view on this
notwithstanding, I am satisfied that the disclaimer notice stands to be applicable and enforceable when the
conspectus of evidence is considered .... '
34 Act 68 of 2008.
35 '{3} A provision, condition or notice contemplated in subsection (1) or (2) must be written in plain
language, as described in section 22.
(4) The fact, nature and effect of the provision or notice contemplated in subsection (1) must be drawn
to the attention of the consumer-
(a) in a conspicuous manner and form that is likely to attract the attention of an ordinarily alert
consumer, having regard to the circumstances; and
(b) before the earlier of the time at which the consumer-
{i) enters into the transaction or agreement, begins to engage in the activity, or enters or
gains access to the facility; or
(ii) is required or expected to offer consideration for the transaction or agreement.
(5) The consumer must be given an adequate opportunity in the circumstances to receive and
comprehend the provision or notice as contemplated in subsection (1).'
31
[7 4] The Plaintiff referred the court to the matter of Duffield v Lillyfontein
School and Others 36 where Pickering J held:
' ... the only interpretation which can be placed upon the indemnity is that it was
conditional upon stringent safety measures being in place. In effect the plaintiff has
stated that because stringent safety measures would be in place she therefore
indemnifies the defendants against any claims in the event of personal accident or
injury.'
[75] In casu, the Plaintiff emphasised that the disclaimer notices are on the
front door of the restaurant immediately above the caution notice indicating that the
floors may be slippery when wet. The Plaintiff and Mr Winspear reasonably expected
to be notified that the floor was wet by the placing of wet floor notices on the floor. It
was asserted that if the Defendant displayed the wet floor notices on the wet floor
inside the existing dining area, the disclaimer can be enforced. Consequently, they
argued that the Defendant should not be allowed to escape liability under the
disclaimer.
[76] As previously stated, notwithstanding that the cleaning protocols were
elucidated in detail, the actual person, namely, "the lady with the mop", was not called
to give evidence as she had apparently witnessed the incident and would have been
in the best position to explain where the warning signs were placed when the floor was
being mopped. It was explained that this is necessary as floors are slippery when wet
and to ensure the safety of customers and employers.
36 [2011) ZAECGH 3.
32
[77] Even if the doctrine of quasi-mutual consent finds application, and even
if the wording of the disclaimer notice is was written in plain language, was brought to
the attention of the Plaintiff and was understood by the Plaintiff, it must be emphasised
that a disclaimer is not an automatic legal shield, and must in my view, be evaluated
in the context of the overall safety management of the premises. This approach aims
to reshaped how South African courts view disclaimer notices, emphasising
reasonable safety over blanket exclusions of liability.
[78] To my mind, the enforcement of an indemnity clause will depend on the
facts of each case. The way I see it, the application of an indemnity clause is
conditional upon it being established that the indemnifier took reasonable steps to
guard against the incident form which it wishes to be indemnified. The authorities are
clear that the Defendant has the duty to take reasonable steps to keep his premises
reasonably safe at all times when members of the public may be using them. In my
view, if the correct cleaning protocols were observed, the harm was reasonably
preventable.
Wrongfulness
[79] At the outset of the proceedings the Plaintiff applied to amend the
Particulars of Claim to include the word "wrongful" in front of the word "breach" in
paragraph 9 of the Particulars of Claim. There was no opposition to the amendment.
[80] The Defendant argued that the Plaintiff failed to prove wrongfulness. The
general rule is that a person does not act wrongfully for the purposes of the law of
delict if he omits to prevent harm to another person. It is trite that omissions are prima
33
facie lawful. Liability follows only if the omission was in fact wrongful, and this will be
the case when a legal duty rests on a Defendant to act positively to prevent harm from
occurring and he failed to comply with such duty.37
[81] The Defendant failed to comply with its self-imposed reasonable
measures to guard against the occurrence of the incident. The caution notice that the
floors may be slippery when wet therefore establishes a duty on the Defendant to notify
customers that the floor is wet. The Defendant has the duty to take reasonable steps
to keep his premises reasonably safe at all times when members of the public may be
using them. Its failure to do so would amount to wrongfulness in the context of a
delictual action. Consequently, I am not persuaded that the Defendant took reasonable
steps to prevent the incident from occurring for the reasons elucidated earlier.
Conclusion
[82] In the absence of an explanation from the Defendant, this court has
inferred, prima facie that a negligent failure on the part of the Defendant to perform
this duty must have been the cause of the fall of the Plaintiff. Consequently, I am of
the view that the Defendant has not adduced sufficient evidence to rebut the prima
facie case of negligence put up by the Plaintiff, which reasoning is in keeping with
Gamble J, in Williams (supra)38.
[83] Having regard to the entirety of the evidence, I am satisfied, on a balance
of probabilities, that the Plaintiff has proven that the Defendant wrongfully and
37 Neethling et al "Law of Delict' LexisNexis (7th ed), para 5.2 page 58.
38 At para 49 'In my considered view, then Pick 'n Pay has not adduced sufficient evidence to rebut the prima
facie case of negligence put up by the Plaintiff.'
34
negligently breached its duty of care owed to members of the general public at large
as alleged. In the circumstances I am satisfied that the Plaintiff slipped and fell as a
result of the wet floor which incident was occasioned by the negligence of McDonald's
employees and she is thus entitled to be fully compensated by the Defendant for such
damages as she may prove in the future.
Costs
[84] It is trite that costs ordinarily follow the result. The Plaintiff submitted that
the costs of counsel be awarded on Scale C. In the exercise of my discretion, I order
that Counsel's fees be taxed on a Scale B given the clearly identified features of this
case that were complex, important and valuable to the Plaintiff.
Order
[85] In the result, I grant the following orders:
(a) The Plaintiff's claim on the merits is upheld.
(b) It is ordered that the Defendant is liable to pay to the Plaintiff 100% of such
damages as she may establish in due course arising out of her fall at the
McDonald's restaurant in Milnerton on 6 February 2017.
(c) The Defendant is ordered to pay the Plaintiff's costs on a party and party scale,
including the cost of Counsel to be taxed on a Scale B.
(d) The trial on quantum is postponed sine die.
P DANDREWS
Acting Judge of the High Court of South
Africa Western Cape Division, Cape Town
35
CASE NO: 5229/2018
APPEARANCES:
Counsel for the Plaintiff: Advocate AJ du Toit
Instructed by: DSC Attorneys
Counsel for the Defendant: Advocate A van Loggerenberg
Instructed by: Clyde and Company
Hearing dates: 05 -06 August 2024; 28 October 2024
Judgment Delivered: 30 January 2025
This judgment was handed down electronically by circulation to the parties'
representatives by email.
36