IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN

Case number: 14475 /20

In the action between:

AMANDA BARNARD
Plaintiff
and

PEREGRINE PLAZA (PTY) LTD
Defendant
Before: The Hon. Mr Acting Justice Montzinger
Hearing : 13 – 15 August 2024; 18 September
2024
Judgment delivered electronically: 18 February 2025


JUDGMENT

(Delivered by email to the parties’ legal representatives and by release to
SAFLII )

Montzinger AJ

Summary Introduction

1. The plaintiff , a 72-year-old pensioner, seeks to hold the defendant liable for
damages after she slipped and fell on a wet and slippery wooden walkway at
the defendant’s business premises known as the ‘Peregrine farm stall’ or
‘Peregrine’.

2. The defendant operates the Peregrin e farm stall as a popular open -air retail
and dining operation, combining elements of a farm stall with a broader
shopping experience. The farm stall is located just outside the town of
Grabouw. The premises hosts various shops housed in pop -up containers, with
wooden decking connecting the retail spaces. The operation attracts thousands
of patrons monthly, offering a range of goods, including fresh produce, artisanal
foods, and other retail products, alongside dining/eatery options. This unique
layout of b lending commercial and recreational facilities, forms the context
within which the incident involving the plaintiff happened which resulted in her
instituting th is action.

3. The plaintiff’s pleaded case is that on 27 July 20191, at approximately 11h00,
she visited Peregrine farm stall and walked between the shops. She turned
right near shop 4, came upon a stack of crates protruding from the front of the
container, and had to swerve to avoid them. As she did so, her feet slipped on
what she describes as a wet , dirty, and slippery wooden deck. She fell heavily
onto her right side and sustain ed a compound fracture of her femur and other
injuries . The plaintiff further p leaded , in her particulars of claim , that the
defendant was negligent by allowing the deck to remain wet and slippery
without adequate warning or attempts to prevent the incident from occurring .

4. The defendant in its plea admitted that it owed members of the public visiting its
premises a duty of care, but it denied negligence. It also pleaded that it had a
reasonable system in place to keep the premises safe; that no undue wetness
or dirt existed on the deck on the day in question and that warning signs are
deployed whenever conditions warrant it . Also, it was pleaded, that the plaintiff
herself is to blame for the fall in that she failed to keep a proper lookout, wore

1 She was 69 at the time
unsuitable footwear, and moved suddenly without paying adequate attention. In
the alternative, the defendant pleaded contributory negligence on the plaintiff’s
part and sought an apportionment of damages award should the court find for
the plaintiff.

5. The parties have agreed to separate the issue of the merits and quantum. Only
evidence in respect of the merits were presented and I a m tasked to decide that
issue only.

6. The court heard evidence from the plaintiff; Mr Barnard (the plaintiff’s husband);
and Mr Burls (the defendant’s managing director). Various exhibits in the form
of trial bundles and photographs were accepted during the course of the trial.

Summary of the evidence

7. I have carefully reflected on the testimony of the witnesses (for the plaintiff and
defendant). I observed that each provided coherent and consistent accounts of
their testimonies, and I could identify no material contradictions or
improbabilities that would cast doubt on their credibility.

8. In the paragraphs that follow, I set out a concise overview of the evidence that
each witness contributed to the matter .

Plaintiff’s evidence

9. At the start of the plaintiff’s evidence I was provided with a document that
contained a site plan of the Peregrine f arm stall. From this plan, the premises
of the farm stall appear to be laid out in a rectangular fashion, with a row of
shops (Shop 1, Shop 2, and so forth) arranged around a central courtyard or
open -air area. Parking and vehicle access lie on the western side (towards the
N2 and Somerset West), while a bu s parking area is indicated to the north
(towards Bot River). Shop 3 and Shop 4, which are in the form of container
units, sit adjacent to each other on the northern edge of the main wooden
walkway with an “Open Air Shop” nearby, also fronting onto the woo den deck.
A larger “Restaurant/Shop” building occupies the southern portion of the plan,
with a separate toilet block behind it to the east. The walkway in question runs
between and in front of these shops, creating a thoroughfare where goods are
displayed , and customers move between the various outlets. This open -air
deck, therefore, serve as a transitional space that shoppers must traverse to
have access to different parts of the farm stall . It is this open -air deck walkway
that is central to the incident at issue.

10. The plaintiff testified that 27 July 2019 was a typical winter’s morning in the
Grabouw area. After they arrived at the farm stall she walked around and
moved between the various outlets. She was walking “very slowly” as she
browsed the goods di splayed in an open area between Shops 3 and 4. Near
Shop 4, she noticed a stack of crates only once she had turned the corner
leaving the open space between the two shops. Her intention was to continue
walking on the wooden where the entrance to Shop 4 was. She testified that
the crates were protruding from the edge of Shop 4’s front. Startled, she
sidestepped to her left to avoid them; in so doing, her feet slipped out from
under her.

11. She fell onto her right side and immediately felt intense pai n in her leg. She
also noticed moisture on the deck when she put her hand on the planks. She
described the surface as “very slippery” and “dirty.” Mr Barnard was summoned
by an onlooker and arrived to assist the plaintiff who was lying down on the
deck. At this point Mr Barnard touched the deck and remarked that it felt damp
with dew and that he could feel dust or grime on his hand. An employee or
manager, later identified as Mr Hilton Fagri, also arrived . He provided the
plaintiff with a blanket, and asked Mr Barnard to help keep bystanders away “so
they wouldn’t slip and fall” onto the plaintiff.

12. The plaintiff’s husband took photographs of the scene to document the
conditions. She testified further that the shininess on the decking visible in
those photos arose from moisture that had collected in th e shaded spot where
the crates in Shop 4 were and w here she fell . The plaintiff was taken from the
scene by an ambulance. On the Monday following the incident, one of the
defendant’s owners or directors, Ms Murie l Burls, phoned Mr Barnard to inquire
about the plaintiff.

Mr Barnard’s Evidence

13. Mr Barnard corroborated his wife’s version of events. He testified that, when he
bent down to feel the deck near where the plaintiff had fallen, he found it
“reasonably wet from dew” and grimy; his hand showed visible dust. The deck
felt “very slippery,” i n his words in Afrikaans , “seepglad .”

14. He also described how Mr Fagri expressed concern that the same slippery
condition might cause other patrons to slip, prompting them to block off the
immediate area around the plaintiff .

Mr Burls’s Evidence

15. Mr Burls, the defendant’s managing director, testified that the deck in front of
Shop 4 was constructed of treated pine upon the advice of an architect who
knew the premises well. He explained that the defendant employed a
professional cleaning company tha t cleaned regularly on weekdays and
performed deeper cleans with sugar soap and high -pressure hoses on an as -
needed basis.

16. He acknowledged the use of “wet floor” cones or signage whenever employees
or tenants reported a need , for instance, after a lot of rain. He suggested that
the “shine” on the photos could be due to the sealant rather than moisture,
emphasising that no other patrons had slipped there on that day or any other
day, despite some 66 000 customers visiting the premises that month.

17. Although he was aware the plaintiff had pleaded that the walkway was “wet”
and “slippery,” he insisted that the real cause of the fall was likely the plaintiff’s
failure to keep a proper lookout and her sudden movement upon seeing the
crates.

Legal requirements to establish a delict

18. To establish delictual liability, a plaintiff must prove the following five elements2
on a balance of probabilities:

18.1 Conduct: This can be an act (commission) or a failure to act (omission).
An omission can occur when the re is a legal duty to prevent harm, as in
this case where the defendant is the private owner of a property and
has control over it3.

18.2 Wrongfulness: This is determined by legal and public policy, focusing
on the duty to avoid causing harm and the reasonable ness of imposing
liability4. A negligent omission is wrongful only if the law recognises a
legal duty to prevent the harm5. Factors that a court may consider
include foreseeability and extent of harm, risk, constitutional
obligations, statutory duties, i nterests of the defendant and community,
control over the situation, preventative measures, cost proportionality,
and other remedies6.

18.3 Fault (Negligence): This involves a threefold enquiry7: (i) was the harm
reasonably foreseeable? (ii) would a reasonabl e person ( diligens
paterfamilias ) have taken steps to prevent the harm?; (iii) did the
diligens paterfamilias fail to take those steps? The negligent conduct
must also be recognized by law as wrongful8.

18.4 Causation: This involves factual and legal causatio n: (i) factual
causation uses the "but -for" test: would the harm have occurred "but

2 MTO Forestry (Pty) Ltd v Swart NO 2017 (5) SA 76 (SCA) par [12].
3 Minister of Forestry v Quathlamba (Pty) Ltd 1973 (3) SA 69 (A)
4 Loureiro & others v Imvula Quality Protection (Pty) Ltd [2014] ZACC 4 ; 2014 (3) SA 394 (CC) para
53
5 Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) para 12
6 Kruger v MEC, Transport & Public Works for the Western Cape and A nother (10067/2011) [2015]
ZAWCHC 158 (29 October 2015) (“ Kruger v MEC”) par 43
7 Butise v City of Johannesburg and Others 2011 (6) SA 196 (GSJ) ( “Butise” )
8 Trustees, Two Oceans Aquarium Trust v Kantey and Templer (Pty) Ltd 2006 (3) SA 138 (SCA) para
10
for" the defendant's omission?; while (ii) legal causation considers
whether the negligence is closely enough linked to the harm9.

18.5 Harm/Damages: The plaintiff must prove p ersonal injuries and related
losses, such as medical expenses, loss of earning capacity, or pain and
suffering.

19. A court can address these elements in any order and may start with an element
or elements that can be more conveniently determined. However, all elements
must be satisfied for the plaintiff to succeed. If a single element is not
established, the claim fails .

20. In respect of slip-and-fall cases, South African law recognises that a landowner
or shopkeeper owes a duty of care to patrons to ensure the premises are
reasonably safe, but not to guarantee absolute safety. As per Probst v Pick ‘n
Pay10, a shopkeeper must have a reasonable system in place to identify and
remove hazards, bearing in mind that patrons typically focus on merchandise,
not the floor11. In Cenprop12 the Supreme Court of Appeal held that slippery
floors from weather conditions (such as rain or the trafficking -in of water) are a
foreseeable hazard. A shopkeeper must thus take active and reasonable steps ,
throug h cleaning, inspection, or warning signs , to mitigate the danger.

Competing contentions on the evidence

21. Ms Du Toit appeared for the plaintiff and contended that the defendant knew or
ought to have known that an open -air deck in a shaded area could remain
damp with winter morning dew. By failing to inspect and dry the walkway or at
least place “wet floor” signage, the defendant was negligent. It was also argued
that the plaintiff was entitled to walk at a slow pace, looking at the goods on
display, and not be constantly surveying the walkway underfoot. That t he

9 International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 700 E -I
10 Probst v Pick ’n Pay Retailers (Pty) Ltd [1998] 2 All SA 186 (W) (“Probst v Pick ‘n Pay ”)
11 Probst v Pick ‘n Pay page 20
12 Cenprop Real Estate (Pty) Ltd and Another v Holtzhauzen 2023 (3) SA 54 (SCA) (“Cenprop ”) par
28 - 19
suggestion that the plaintiff’s footwear was inappropriate was denied under
cross examination . Lastly, it was a rgued that the defendant’s failure to call
Mr Fagri , who was available to testify virtually, as he now resides overseas ,
warrants an adverse inference, since his evidence would likely have confirmed
the slippery state of the deck and the plaintiff’s fall .

22. Ms Oosthuizen appeared for the defendant. She argued that the evidence did
not establish that t he defendant was negligen t. It was contended that on the
probabilities the plaintiff must have simply lost her balance when confronted
with the crates, or that s he tripped, rather than slipped on the wet surface. I was
reminded to have regard to the fact that there were no other incidents that day
and of the defendant’s general cleaning system when the deck was wet. It was
further argued that the p laintiff admitted being surprised by the crates, an
admission which, the defendant contended , indicates she was not looking
where she was going.

Evaluation

23. On the evidence, I accept that the deck was wet from dew, at least in patches,
and that it was suf ficiently slippery to cause or materially contribute to the
plaintiff’s fall. Both the plaintiff and Mr Barnard testified credibly that they felt
moisture and found the deck “reasonably wet” and “seepglad.” Their
descriptions of the events of the day align with a typical winter morning
scenario . The photographs were said to show “shiny” sections of plank and that
these “shiny” sections represent the dew the plaintiff and Mr Barnard was
referring to . Mr Burls’s suggestion that the shine might be the sealant cannot be
completely discounted, but he was not personally present at the scene and had
no direct observation of the status of the deck that morning.

24. Moreover, the plaintiff testified that the crates only became apparent once she
rounded the corner of Shop 4, she then “swivelled” and suddenly slipped. The
uncontroverted evidence that Mr Fagri then asked Mr Barnard to keep
bystanders away “so they do not also slip” strongly supports the plaintiff’s
version that the walkway was indeed slippery and caused her fall.

25. In this matter, there is no dispute, and the evidence confirm this, that the
defendant “acted” in the sense of operating the farm stall and furnishing the
public with access thereto. The evidence was also that the incident involving
the plaintiff did happen on the day in question. The evidence also supports a
conclusion that the defendant’s conduct, for purposes of assessing delictual
liability in this case , lies in its alleged omission in that it failed to keep the
wooden decking reasonably free of dangers and to warn patrons of a potentially
slippery surface. I am thus satisfied that this element of a delict has been
established.

26. Since the defendant admitted that it owed the plaintiff a legal duty by nature of
the type of business it operates b y inviting members from the public to visit its
premises, this element does not have to be ventilated in much detail.

27. I am in any event satisfied that there is a legal duty on a shopkeeper , like the
defendant, to keep the wooden decking reasonably safe for the public that use
it during trading hours, bearing in mind that shoppers will spend much of their
time with their attention on goods and merchandise being displayed and not on
the floor to ensure that every step that they took was saf e. In this instance
certainly the legal convictions of the community would require reasonable steps
to be taken by the defendant to guard or warn against reasonably foreseeable
dangers.

28. In the present circumstances , an open -air deck in winter where morning dew
persists, it was reasonably foreseeable that wet planks could pose a slipping
hazard. By failing to address or warn against this situation , I find that the
defendant’s omission, as established by the evidence , was indeed wrongful.

29. In light of the evidence, it is uncontroverted that winter dew frequently collects
on the wooden deck, creating a risk of slipperiness. Although the defendant
testified that it had a cleaning system in place and deployed “wet floor” cones,
when necessary, the plaintiff led evidence that no such measures were taken
on the morning of her fall. The presence of crates along the walkway further
increased the likelihood that a customer might need to sidestep or make a
quick turn, elevating the risk of a slip on a damp surface. Assessing these
factual details as a whole, I find that the defendant, in failing to perform an
inspection or set out warning signs that day, did not meet the standard of a
reasonable person in the position of farm stall owner inviting members of the
public to visit its premises .

30. As in Cenprop , I find that the presence of water on walking surfaces is
eminently foreseeable. Even if not caused by direct rainfall, morning dew in
winter is a common phenomenon. The defendant is well aware (or should be
aware) of conditions on its premises during . In these circumstances, failing to
anticipate or inspect for dew where the deck is covered in shade and the
walkway smooth . Particularly where goods are displayed outdoors an d
customers are invited to look at those goods , constitutes a foreseeable risk. A
reasonable person in the defendant’s position would take steps to mitigate that
risk, such as quickly mopping, drying, or at least warning customers of the
slippery surface. While the evidence of Mr Burls was that there was mopping
after the incident it does not assist the defendant in this case. It had to be done
before the incident, when it was obvious that dew was present.

31. Moreover, the crates placed near the front of Shop 4 introduced an additional
hazard, forcing the plaintiff to have to step to the side or swerve. This situation
in combination with a slippery floor, created a clear risk of a slip -and-fall and
was negligent.

32. Finally, the requirement of causation demands th at the defendant’s omission be
linked sufficiently closely to the plaintiff’s fall. Factual causation asks whether
the plaintiff would have slipped if the walkway had been kept dry or if clear
warnings had been posted. The plaintiff’s evidence is that she lost her footing
when she swerved around the crates, specifically because the deck was damp
and felt slippery. Her husband corroborated seeing moisture and dust on his
hand after touching the planks. Furthermore, Mr Fagri ’s comments , though
indirectly rela yed, suggested that there was a real hazard underfoot. Had the
defendant taken reasonable precautions, it is more likely than not that the
plaintiff could have avoided the slippery spot or been alerted to proceed with
greater caution. On the probabilities, therefore, the defendant’s omission
caused, or materially contributed to, the plaintiff’s slip and fall.

33. On balance, I find that the plaintiff’s fall was caused by her feet slipping on a
wet and slipper spot on the deck as she attempted to sidestepped the crates in
front of Shop 4 . There is no persuasive evidence that she simply “tripped” over
her own feet. The immediate, unchallenged observations by both the plaintiff
and Mr Barnard regarding moisture and slipperiness, and the reaction fro m
Mr Fagri, bolster the plaintiff’s case on causation.

Failure to Call Mr Fagri

34. The defendant did not call Mr Fagri , who was its weekend manager and
actually on the scene that day. Despite confirming that he was contactable
abroad, the defendant refused t o provide his contact details to the plaintiff when
it was requested . Our law is clear that where a party declines to call a material
witness who is available and able to testify , an adverse inference may be drawn
that the witness’s testimony would have be en unfavourable to the party who
could call the witness13. Mr Barnard’s evidence that Mr Fagri expressed
concern about others slipping is directly relevant to the condition of the deck.
The defendant’s failure to contest what Mr Fagri said to Mr Barnard leaves his
version of what was said to him uncontested. I accordingly draw the inference
that Mr Fagri’s testimony would indeed have corroborated the plaintiff’s case on
the wet ness and slippery status of the walkway , and the plaintiff’s fall.

Apportionment or Contributory Negligence

35. The defendant also argue d that the plaintiff contributed to her own fall by failing
to keep a proper lookout and wearing smooth -soled shoes. However, the
evidence was clear that the plaintiff walked slowly and was entitled, in law14, to

13 Elgin Fireclays Ltd v Webb 1947 (4) SA 744 (A) at 749 –750 and Cele v Passenger Rail Agency of
South Africa 2023 JDR 1743 (GP) par 33
14 As per Probst v Pick ’n Pay supra
pay greater attention to the displayed goods than to her every footstep .
Customers do not proceed with their “eyes glued to the ground”15. The crates
were placed in such a way that they came into view sudden ly, triggering her
swerve.

36. Having regard to the evidence the plaintiff’s situation is similar to what the court
had to decide in Cenprop16. Therefore, the evidence of the plaintiff that on the
morning of the incident the deck she slipped on was wet as a consequence of
the dew remained uncontroverted. Her further evidence that she proceeded
slowly along the wooden deck but slipped and fell du e to the crate and the wet
wooden slippery deck which posed a danger to her is unimpeachable. Under
the circumstances, there is no basis I can find the plaintiff in any way negligent.

37. In respect of her footwear. Nothing in the evidence suggests that the plaintiff’s
footwear was particularly improper or that a more “robust” sole would have
averted the slip. Had the surface not been damp and grimy, the sudden
manoeuvre to avoid an unexpected obstacle would not likely have led to such a
fall. I accordingly do not find any contributory negligence on the plaintiff’s part.

Costs

38. The plaintiff specifically seeks cost for the postponement of the trial on 14 May
2024 regardless of the outcome of the matter . Since I am finding for the plaintiff
the plaintiff would i n any event be entitled to her costs. However, for the
avoidance of doubt I will briefly state my reasons why the defendant should in
any event be liable for the wasted costs occasioned by the postponement on 14
May 2024.

39. At the commencement of trial on 14 May 2024, the defendant objected that it
was not prepared to meet a case of a “wet and slippery floor,” prompting a
postponement so that the plaintiff could formally amend her particulars of claim.
However, it is clear fr om the letter of demand, the inspection with the

15 Mthembu
16 par 23
defendant’s insurer, Dr Olivier’s medical report attached to the summons,
requests for trial particulars, and the issues raised during the pre-trial, that the
defendant had long been alerted to the plaintiff ’s version involving the wetness
and slipperiness of the walkway .

40. The conclusion is inescapable that the defendant conduct occasioned the
postponement. It was, or should have been, fully aware of the alleged “wet
walkway” issue from multiple sources in the record and had ample opportunity
to resolve any perceived uncertainty at an earlier stage. The defendant should
therefore bear the wasted costs occasioned by that postponement .

Conclusion

41. Having regard to all the evidence and the applicable legal princi ples, I find that
the defendant’s omission in failing to take reasonable steps to detect or dry the
dew-laden walkway, or to warn the plaintiff of the slippery surface, was
negligent and caused the plaintiff’s fall. No apportionment is warranted .

42. In the result, the following order is made:

42.1 The plaintiff’s claim on the merit succeeds and the d efendant is liable
for 100% of the damages which the plaintiff may prove to have arisen
from her fall on 27 July 2019 .

42.2 The defendant shall pay the plaintiff’s costs o f suit, including counsel’s
fees on scale B.

42.3 The defendant shall bear the wasted costs occasioned by the
postponement on 14 May 2024 , including counsel’s fees on scale B.


____________________________
A MON TZINGER
Acting Judge of the High Court


Appearances:

Plaintiff ’s counsel: Ms. Du Toit
Plaintiff ’s attorney: Lombard & Kriek Inc.
Defendant ’s counsel: Ms Ooshuizen
Defendant ’s attorney: Adams Attorneys