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[2010] ZAWCHC 83
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Fritz v Sal-Vred Dealers CC (3373/2010) [2010] ZAWCHC 83 (14 April 2010)
IN
HIGH COURT OF SOUTH AFRICA
(EASTERN
CIRCUIT LOCAL DIVISION, GEORGE)
REPORTABLE
CASE
NO: 3373/2010
In
the matter between
IDA
ELIZABETH FRITZ
Plaintiff
and
SAL-VRED
DEALERS CC 1995/021563/23
Defendant
JUDGMENT
DELIVERED ON 14 APRIL 2010
YEKISO
J
[1]
The plaintiff, Ida Elizabeth Fritz, is described in the particulars
of claim as an adult entrepreneur, born on 3 November 1946
and
resides at 23 Housewood Road, Heather Park, George, in the province
of the Western Cape.
[2]
The defendant is Sal-Vred Dealers CC 1995/021563/23, a close
corporation duly incorporated and registered in terms of the
provisions
of the
Close Corporations Act, 69 of 1984
, and used to
carry on business as such under the name and style of Super Spar
Hartenbos, a grocery undertaking, with its principal
place of
business at the corner of Cape of Good Hope and Kompanje Streets,
Hartenbos, in the province of the Western Cape. It,
however, emerged
in evidence during the course of trial that the defendant has since
sold the business undertaking and no longer
carries on business under
that name at the physical address mentioned in the particulars of
claim.
[3]
The plaintiff's claim against the defendant is for recovery of
delictual damages arising from an incident which occurred on
26
September 2007 when the plaintiff slipped and fell at the defendant's
then supermarket at Hartenbos. It is common cause between
the parties
that plaintiff did indeed slip and fall at the defendant's business
premises so that the issues which called for determination,
once the
pleadings were closed, were a question of the defendant's liability,
the plaintiff's alleged contributory negligence and
the quantum of
plaintiff's damages. In its plea the defendant raised several
defences on which I shall elaborate later in this
judgment.
[4]
At the commencement of trial it appeared that the parties were
ad
idem
that
it would be prudent that the question of liability first be
determined and that the quantum of plaintiff's damages be left
over
for later determination should a need arise to do so. Consequently, I
was requested by the parties at the commencement of
trial to order a
separation of these issues in terms of Rule 33(4) of the Uniform
Rules of Court. I made the appropriate order
as requested by the
parties.
FACTUAL
BACKGROUND
[5]
The facts and the circumstances out of which plaintiff's claim arise
may be briefly stated as follows:
[5.1.]
Since on or about 2006 upto and including 26 September 2007 the
plaintiff, according to her evidence, had been in the employ
of her
husband, Thomas Johan Fritz, a sales representative, who carries on
business under the name and style Fruit Hall Prime Cut.
The main
activity of the business undertaking is to supply merchandise to
several business outlets includingSuper Spar, Hartenbos.
The
operational area of the business undertaking spans from Riversdale up
to Plettenberg Bay including other areas outside the
Garden Route,
such as Oudtshoorn. Since her employ by her husband, so the plaintiff
stated in her evidence, she accompanied him
in the course of the
delivery of such supplies. At each business outlet where they
delivered such supplies, her husband would effectively
offload the
supplies from the delivery vehicle and carry these into the receiving
division or department of the business outlet
concerned. The supplies
would first be checked by a receiving clerk, verify if the items
delivered reconcile with the quantity
specified in the invoice, keep
the original invoice and hand a copy to the person delivering such
supplies. The process involved
unpacking the goods from the
container; have the quantity thereof verified; reconcile the quantity
of the goods with the number
specified in the delivery invoice;
repack the goods in the container; and ultimately take the goods
through to the shop floor of
the business undertaking concerned. The
plaintiff's husband would attend to the labour intensive part of the
process, i.e., offloading
and carrying the goods supplied whilst the
plaintiff would attend to the paper work, the handing in of the
invoices and retaining
a copy thereof as proof of acknowledgement of
receipt of the supplies so delivered.
[5.2.]
Her monthly salary was in an amount of R2,500-00. Her position in her
husband's undertaking, according to her evidence, was
that of a
packer or merchandiser, the latter being a term commonly referred to
in evidence in the course of trial. From the year
2004 upto 2006 she
was employed by Just Water, ostensibly an undertaking which supplied
preserved bottled water, as a sales representative.
However, the fact
of her employment by her husband as a merchandiser, is in dispute. Mr
Henko Stander, who was the manager at Super
Spar, Hartenbos when the
incident occurred, and who was called as one of the defendant's
witnesses, disputes that the plaintiff
was employed as a
merchandiser. He makes this assertion because the plaintiff was never
introduced at Super Spar, Hartenbos as
the merchandiser. In this
regard Mr Stander stated in his evidence that it was the defendant's
policy that persons operating in
the business outlet as merchandisers
would fist have to be introduced to management by the sale
representatives before recognition
would be accorded to them as a
merchandiser.
[5.3.]
On the date the incident occurred, the plaintiff had accompanied her
husband in the course of delivery of supplies to various
business
outlets including that of the defendant, Super Spar, Hartenbos.
Entrance into the Super Spar, Hartenbos was required to
be made
through the back entrance leading to the defendant's delivery area
situate at the back of the business outlet where the
merchandise
supplied would be delivered, checked and verified. Once the
merchandise would have been checked and verified, her husband
would
then carry the merchandise into the shop floor area which is
accessible through an entrance door leading from the delivery
area,
for packing onto the shelves in an area of the shop floor designated
for such goods. It is in such designated area where
the goods would
be unpacked and placed on display shelves. Whilst her husband had
gone through to the shop floor area, she remained
behind finalising
the paper work with the receiving clerk. Once the paper work had been
completed, the plaintiff proceeded to the
shop floor area and, in
dong so, had to walk down a sloping surface (ramp) joining two
different surface levels and from there
she would have had to turn
right to the entrance door leading to the shop floor area.
[5.4.]
Whilst walking on the sloping surface (ramp) on her way to the shop
floor area, the plaintiff slipped and fell on her bottom
side and in
the process suffered serious bodily injuries more fully described in
various medical reports filed of record. After
she had fallen, her
husband was notified and called to the scene. Mr Stander also came to
the scene, ostensibly before her husband
had arrived on the scene.
After she had been stabilised her husband assisted her through to the
delivery vehicle and, ultimately,
took her through to Bay View
Hospital where she was admitted and subsequently received medical
treatment. She states in her evidence
that she had a pair of denim
jeans on and a pair of cream/beige shoes made of synthetic leather
and rubber soles. Once again, the
type of shoes plaintiff had on is
in dispute. Whilst the plaintiff claims to have had on shoes of the
colour and texture just described,
it is pleaded on behalf of the
defendant that she had a pair of slip-ons on which were clearly and
visibly smooth underneath. Whilst
her husband assisted her into the
delivery vehicle, he felt moisture at the bottom end of her pair of
jeans ostensibly caused by
a transparent and, ostensibly, slippery
substance which could have been spilled on the sloping surface. She
had in her possession
a transparent bag in which there was a pair of
scissors and a piece of cloth these, according to her evidence, being
items and
equipment she used to cut boxes open and to clean shelves
in the course of placing the goods in the designated display shelves.
[6]
After approximately two hours after the incident occurred, the
plaintiff's husband returned to the defendant's supermarket and
took
photographs of the delivery area where the incident occurred
including the photograph of the sloping surface where plaintiff
slipped and fell. These photographs were admitted in evidence as
Exhibit "A". Exhibit "A" consists of twelve
(12)
photographs in all. Three of the photographs were taken on the date
the incident occurred, approximately two hours after its
occurrence.
The three photographs depict empty cardboard boxes strewn all over
the surface in the delivery area except the sloping
surface where
plaintiff fell. The substance painted on the sloping surface designed
to prevent the sloping surface being slippery,
is clearly visible and
shows signs of peeling off. The steps leading to the upper surface of
the delivery area from where the slope
descends are not visible and
are clearly concealed by the empty cardboard boxes. The rest of the
photographs were taken a few days
before the commencement of trial.
The steps leading to the upper surface of the delivery area are
clearly visible in photographs
6, 7 and 9. The steps are situated on
the right hand side adjacent to the ramp (sloping surface) referred
to earlier in this judgment.
According to the plan, drawn not to
scale, and admitted in evidence as Exhibit "C", the surface
of the ramp measures
2,3 x 1,2 m
2
.
The height from the upper surface level from where the ramp
descends to the lower surface level measures 700mm. This then
concludes the description of the background and the circumstances
under which the plaintiff slipped and fell in the delivery area
resulting in the plaintiff sustaining the injuries complained of.
[7]
Based on the facts briefly described in the preceding paragraphs the
following facts appear to be common cause, at the very
least, or not
seriously disputed by either of the parties, and these are:
[7.1.]
That on 26 September 2007 the plaintiff slipped and fell whilst
walking on the ramp leading from the upper surface level
to the lower
surface level in the goods delivery area which, as has already been
stated, is situate at the back of the defendant's
business premises;
[7.2.]
That the area where the plaintiff slipped and fell is on a ramp
leading from the upper surface level and to the lower surface
level
of the store area;
[7.3.]
That based on the evidence tendered at trial it appeared to be common
cause that the portion of the premises where the plaintiff
fell is a
goods receiving area where the defendant's supplies are delivered and
received.
[7.4.]
That the persons having access to the defendant's delivery area where
goods supplied are received, and also persons using
the ramp are the
defendant's employees, the representatives of the suppliers of goods
and their merchandisers. The plaintiff alleges
in her particulars of
claim that the defendant owed persons having access to its delivery
area and, in particular, all such persons
using the ramp, a duty of
care that such persons would not be exposed to any potential hazard
arising from any act or omission
caused by the defendant. It is the
defendant's case that whatever duty of care it owed to persons
entering its business premises,
such duty of care is limited to the
category of persons just described, i.e., the defendant's employees,
the representatives of
the suppliers of goods and their
merchandisers.
THE
BASIS OF PLAINTIFF'S CLAIM
[8]
The plaintiff alleges in her particulars of claim that she slipped on
a surface covered with an unknown, invisible and slippery
substance;
that the unknown, invisible and slippery substance was a spillage on
the ramp surface in the delivery area of the defendant's
business
premises; that such spillage occurred within the course and scope of
operational activity in the defendant's delivery
area; that at the
time the incident occurred the defendant owed members of the public
and, in particular, the plaintiff, a duty
of care to take reasonable
steps to ensure that:
[8.1.]
the premises, including the ramp in the delivery area, are safe for
use by persons entering the business premises;
[8.2.]
the premises, including the ramp in the delivery area, was free of
spillage and substances which would pose a potential hazard
to
persons entering and moving about the business premises including the
ramp in the delivery area;
[8.3.]
the defendant has a system in place to make those in authority aware
of the existence of a potential source of danger, both
on the surface
of the shop floor and the delivery area including the ramp, and to
remove such potential source of danger or hazardous
situation without
delay.
[9]
The plaintiff further alleges in her particulars of claim that the
defendant failed in its duty of care in that it failed to
ensure that
its business premises and, in particular, the delivery area inclusive
of the ramp, was safe for use by members of the
public including
plaintiff and, more specifically, the defendant failed to ensure:
[9.1.] that the steps in the delivery area were
accessible for use;
[9.2.]
that the steps in the delivery area were free of obstruction;
[9.3.]
that the ramp did not pose danger to those persons using it by
fitting rails along the wall adjacent the ramp;
[9.4.]
that the ramp did not pose danger to those persons using it by
covering it with anti-slippery devices and/or substances designed
to
ensure that the surface is not slippery.
[10]
Except to admit that the incident complained of occurred in the
delivery area at the back of the defendant's business premises,
the
defendant denies that the plaintiff fell in the category of persons
it owed a duty of care; that if it is found that the defendant
owed
plaintiff a duty of care, the defendant denies that it negligently
failed to discharge such duty of care; and that if it is
found that
the incident complained of was reasonably foreseeable, and the
defendant had a duty to guard against it, the defendant
denies that
it failed to take reasonable steps to guard against the incident
complained of occurring. In the alternative to the
aforementioned
defences, the defendant pleads that the plaintiff was partly culpable
for the mishap which befell her, and that
if it is found that the
plaintiff was so culpable, that whatever damages she may have
suffered as a result of the incident complained
of, such damages
ought to be reduced to the extent and the degree of her culpability
in terms of the provisions of section 1(a)
of the Apportionment of
Damages Act, 34 of 1956. Based on the pleadings, therefore, it would
appear that the first issue which
calls for determination is whether
the defendant owed plaintiff a duty of care.
DUTY
OF CARE
[11]
Neethling et al:
Law
of Delict:
5
th
Edition p137 note that in the determination of a question whether a
duty of care was owed, the criterion was traditionally whether
a
reasonable person in the position of the defendant would have
foreseen that his conduct might cause damage to the plaintiff.
The
authors go on to observe that this issue (the duty issue) is a
policy-based value judgment in which foreseeability plays no
role as
to whether interests should be protected against negligent conduct.
In
Administrateur,
Natal v Trust Bank van Afrika Bpk
1979
(3) SA 824
(A) 833 the court emphasized that the "duty issue"
is not at all concerned with reasonable foresight; it has to do with
a range of interests which the law sees fit to protect against
negligent violation.
[12]
In paragraph 6 of her particulars of claim the plaintiff pleads that
at the time the incident complained of occurred the defendant
had a
duty to members of the public and, in particular the plaintiff, to
ensure that its business premises, including the sloping
surface in
the delivery area where the plaintiff slipped and fell, was safe,
free of spillage and that the defendant had a system
in place to
ensure that any spillage which might occur, be immediately and
effectively brought to the attention of management in
order that it
be speedily and effectively removed. The plaintiff goes on to plead
in paragraph 7 of her particulars of claim that
the defendant failed
to discharge its duty of care by failing to ensure that the sloping
area where the incident occurred was free
of hazardous material and
safe for use by members of the public and, in particular, the
plaintiff. Further, the plaintiff pleads
in paragraph 7.2 and 7.3 of
her particulars of claim that the defendant failed its duty of care
by failing to ensure that a proper
and effective system was in place
to guard against any unknown, transparent and slippery substance
spilling over the ramp, and
that such substance is detected in order
that it be speedily and effectively removed.
[13]
The question as to whether persons in control of areas where members
of the public have access, as for an example, areas under
the control
of municipalities accessible to members of the public and owners of
shops and supermarkets stores have a duty of care
to persons using
access to such areas, has been considered on a number of occasions in
decisions such as
Steward
v City Council of Johannesburg
1947
(4) SA 179
(WLD);
Alberts
v Engelbrecht
1961
(2) SA 644
(TPD) 646C;
Mulcahy
v Model Delicacy Store
1963
(4) SA 331
(D & CLD);
Gordon
v Da Mata
1969
(3) SA 285
(AD);
Probst
v Pick n Pay Retailers (Pty) Ltd
[1998]
2 All SA 186
(W) and
Kriel
v Premier, Vrystaat & Andere
2003
(5) SA (OPD) 71 I-J to mention but few of such decisions.
[14]
In
Probst
v Pick n Pay Retailers (Pty) Ltd,
supra,
Stegman J made the following observation at 200 d - e:
"As
a matter of law, the defendant owed a duty to persons entering their
shop at Southgate during trading hours, to take reasonable
steps to
ensure that, at all times during trading hours, the floor was kept in
a condition that was reasonably safe for shoppers,
bearing in mind
that they would spend much of their time in the shop with their
attention focussed on goods displayed on the shelves,
or on their
trolleys, and not looking at the floor to ensure that every step they
took was safe."
The
remarks by Stegman J were made in the context of a duty of care owed
to persons entering and, walking on a shop floor area of
a
supermarket store. But the remarks by Stegman J are not limited to
shop floors of shops and supermarkets but extend to all such
areas of
a business concern where members of the public have access.
[15]
Whilst the defendant admits that it owed a duty of care in relation
to persons entering its business premises such as sales
representatives and merchandisers, the defendant denies that the
plaintiff, in the instance of this matter, falls in the category
of
such persons for the simple reason that, according to the defendant,
the plaintiff was not introduced to management as a merchandiser
and
that, therefore, the plaintiff was not a merchandiser to whom it owed
a duty of care.
[16]
There are conflicting versions as regards whether the plaintiff was a
merchandiser or not and also as regards the type of shoes
the
plaintiff had on when the incident occurred. Whilst the plaintiff
alleged in her pleadings and stated in her evidence at trial
that she
was employed by her husband as a merchandiser, the defendant, on the
other hand, pleaded and tendered evidence in an attempt
to show that
when the plaintiff visited its business premises on the date the
incident occurred, her presence at its business premises
was not in
her capacity as a merchandiser and therefore did not fall in the
category of persons to whom it owed a duty of care.
Furthermore,
whilst the plaintiff stated in her evidence that she had on a pair of
cream/beige shoes made of synthetic leather,
it is, on the other
hand, pleaded on behalf of the defendant and evidence was tendered at
trial which was intended to show that
plaintiff had a pair of
slip-ons on which were clearly and visibly smooth underneath.
[17]
As to the question as to whether the plaintiff was a merchandiser,
the plaintiff stated in her evidence that on each occasion
she
accompanied her husband on visits to various shops and supermarket
outlets, she did so as a merchandiser and in that capacity.
She
testified that on each such visit her duty involved liaising with the
relevant receiving clerk to have the goods supplied checked,
to have
the quantity of the goods so supplied verified,, to attend to an
acknowledgement of receipt of such goods and, ultimately,
to attend
to the display of the goods so supplied on the designated display
shelves on the designated shop floor area. That the
plaintiff was
involved in such activity is corroborated by one of the defendant's
witnesses in the person of Miss Jansen who stated
in her evidence at
trial that she regarded the plaintiff as a merchandiser
(buite
merchandiser).
Plaintiff
testified that she visited the defendant's premises on a weekly basis
as a merchandiser throughout the period of her employ
by her husband
from 2006 upto and including September 2007.
[18]
Mr Stander conceded in his evidence under cross-examination that he
could not dispute that the plaintiff visited the defendant's
business
premises on a weekly basis and that she had to use the ramp to access
the shop floor area. The plaintiff stated further
in her evidence
that on the day the incident occurred, she had in her possession a
pair of scissors and a piece of cloth with which
to cut boxes open
and to clean display shelves. These appear to be duties consistent
with those of a merchandiser. She stated further
in her evidence that
at no single occasion, since her employ by her husband, was she
prevented from having access to the defendant's
business premises on
the basis that she was not a merchandiser. She had been known at the
store and had been visiting the store
on a regular basis over the
past 11 years. She was not aware that she had to introduce herself to
those in authority as a merchandiser
and was at no stage called upon
to do so. She stated in her evidence that on the date the incident
occurred, she was at the defendant's
premises not as the defendant's
employee but as a member of the public and in her capacity as a
merchandiser.
[19]
The evidence of Mr Stander, on the other hand, is that plaintiff is
not a merchandiser for the simple reason that the plaintiff
was not
introduced to management as such. He stated in his evidence that it
was the policy of the defendant that persons entering
the defendant's
premises as merchandisers had to be introduced to those in authority
as such. It is not clear on the basis of the
evidence tendered at
trial how and in what shape or form was this policy implemented and
communicated to the sales representatives
and, in particular to the
merchandisers. Mr Stander further stated in his evidence that for the
whole period the plaintiff had
been in her husband's employ, he had
never seen plaintiff performing duties of a merchandiser. This is
not surprising as Mr Stander
was in management and could therefore
not have been in a position to have seen every merchandiser
performing his or her duties
in the defendant's premises more so that
the plaintiff visited the defendant's supermarket once on a weekly
basis.. A person ostensibly
in charge of the admission register in
the delivery area, who probably may have shed light as regards
whether the plaintiff used
to visit the supermarket as a
merchandiser, was not called by the defendant to testify. Mr Stander
had, however, seen the plaintiff,
on a few occasions, sitting in her
husband's delivery vehicle in the delivery area. This may well be so,
especially when her husband
would have been offloading and taking the
supplies to the delivery area for the necessary check and
verification.
[20]
Mr
Van der Berg
who
appeared for the defendant, makes a point in his submissions and in
argument that, in instances where there are conflicting
versions of
evidence, a court must be satisfied that the version of the litigant
upon whom the onus rests is true and that the
other version is false,
citing the
National
Employers Mutual General Insurance Association v Gany
1931
(A) 187 as authority for this proposition. Wessels JA, in
National
Employers Mutual General Insurance,
supra,
at 199 made the following observation:
"Where
there are two stories mutually destructive, before the onus is
discharged, the Court must be satisfied that the story
of the
litigant upon whom the onus rests is true and the other false. It is
not enough to say that the story told by Clark is not
satisfactory in
every respect. It must be clear to the Court of first instance that
the version of the litigant upon whom the onus
rests is the true
version and that in this case absolute reliance can be placed upon
the story as told by A Gany."
[21]
The remarks of Wessels JA cited in the preceding paragraph were
criticised in subsequent decisions such as
Maitland
& Kensington Bus Company (Pty) Ltd v Jennings
1940
CPD 489
and in
International
Tobacco Co (SA) Ltd vs United Tobacco Co (South) Ltd (1)
1955
2 SA 1
(W) to mention but few of the decisions in which the remarks
by Wessels JA were a subject of criticism. In
Maitland
& Kensington Bus Co (Pty) Ltd,
supra,
Davis J remarked that the word "absolute" in the last
sentence of the remarks by Wessels JA set too high a standard
of
proof in civil trials whilst Clayden J in
International
Tobacco Co (SA) Ltd,
supra,
remarked that "(t)hough a 'strong possibility' may be less than
'absolute reliance' it still seems, with respect, that
an unnecessary
adjective (the adjective being "absolute") has been
introduced" and went on to choose the usual preponderance
of
probability test. In my view, the approach adopted by
Wessels
JA is too stringent a test to apply in civil trials and its
criticism, as pointed out by
Mr
Van der Berg
in
his submissions, is, in my view, justified. The more acceptable
approach, based on a preponderance of probabilities, is too valuable,
settled and an acceptable assessment tool to be sacrificed on the
altar of too stringent a test as applied in the authority
Mr
Van der Berg
seeks
to rely on and, with the greatest respect, I have no hesitation to
depart therefrom.
[22]
On the basis of the evidence tendered by the plaintiff as well as her
husband, Mr Fritz, I have no hesitation to find that
the plaintiff
was employed by her husband as a merchandiser and that on each
occasion, during the course of her employ by her husband,
she visited
the defendant's premises in that capacity. I am making this finding,
not on the basis that the version offered by Mr
Stander is false and,
accordingly, falls to be rejected, but on the basis that the
plaintiff's version, viewed on the basis of
evidence as a whole, is
more probable than that offered by Mr Stander. In my view, the
standard of proof applied in the authority
Mr
Van der Berg
relied
on equates the standard of proof applied in civil disputes over
centuries to that of proof beyond reasonable doubt applied
in
criminal trials.
[23]
Mr
Van der Berg
makes
a point in paragraphs 22.3 and 22.4 of his submissions that
plaintiff, in a consultation with Dr Dan Potgieter, an orthopaedic
surgeon who compiled a medical report annexed as annexure "A"
to the plaintiff's particulars of claim, did not indicate
that she
was employed by her husband as a merchandiser. In paragraph 1 of the
medical report compiled by Dr Potgieter dated 25
March 2008 there is
reference to the plaintiff's employment history in the banking
industry; a reference to an employment as a
sales consultant by an
undertaking known as Annique Gesondheidsreeks and as an executive
administrative officer in the couple's
small business undertaking
which she successfully manages together with her husband. When
confronted about the fact of her employment
by Annique
Gesondheidsreeks plaintiff pointed out that she worked for this
undertaking purely on casual basis and that she did
mention this fact
to Dr Potgieter in the course of such consultation. In any event
there is nothing contained in paragraph 1 of
the report by Dr
Potgieter which negates the plaintiff's assertion that she was
employed by her husband as a merchandiser.
[24]
There is evidence to suggest that the ramp on which the plaintiff
fell is the busiest surface used at the store, not only by
the
defendant's employees, but also by members of the public in the form
of sales representatives and merchandisers. The defendant
thus owed a
duty of care, not only towards its employees but also to the members
of the public in the form of sales representatives
and merchandisers,
to guard against any source of danger occurring on the ramp surface.
THE
DEFENDANT'S NEGLIGENCE
[25]
The plaintiff alleges in her particulars of claim that the defendant
was negligent in one, more of all of the following respects,
namely:
[25.1.] that the steps in the delivery area were not accessible to
her ostensibly in view of the fact that empty boxes
were strewn all
over the surface in the delivery area except on the floor on the
upper level in the delivery area and ramp;
[25.2.]
that the plaintiff was thus compelled to use the sloping surface on
her way to the shop floor area;
[25.3.]
that the sloping surface was dangerous to use under the
circumstances;
[25.4.]
that an unknown, hardly visible slippery substance was spilled on the
sloping surface;
[25.5.]
that the defendant did not have a system in place to ensure that any
spillage which could pose a potential source of danger
could be
detected and brought to the attention of management; [25.6.] that
because of the absence of a proper system in place,
the defendant did
not detect the spillage on the sloping surface and, ultimately, have
it speedily removed;
[26]
MrCoetzee,
who
appeared for the plaintiff, makes a point in his submissions, and
correctly in my view, that with regards to the sloping surface
(ramp), the following facts appear to be common cause or, at the very
least, were not seriously contested by either of the parties,
and
these being the measurement of the sloping surface (ramp); that the
plaintiff, as at date the incident occurred, was not aware
of the
existence of the steps adjacent to the sloping surface (ramp); a Mr
Joubert, a sales representative who in the past also
visited the
delivery area in the defendant's business undertaking, was unaware of
the existence of the steps adjacent the sloping
surface; that the
steps, at the time the incident occurred, were inaccessible to the
plaintiff; that the defendant used portion
of the delivery area,
excluding the sloping surface, as an area where empty boxes were
strewn; that the plaintiff, in order to
access the shop floor area,
had had to use and walk on the sloping surface; that the sloping
surface was the most used and the
busiest portion in the defendant's
business undertaking; that there were no warning signs in the
vicinity of the sloping surface
designed to warn persons using the
sloping surface of any risk or potential danger; that there were no
hand rails adjacent to the
sloping surface on which persons walking
on the sloping surface could cling on in order to avoid slipping and
falling; that the
plaintiff, over the years, used the sloping surface
without falling; that the defendant was aware of the potential danger
the sloping
surface posed and, for this purpose, used a particular
adhesive paint, referred to in evidence as a Plascon paint, to guard
against
the sloping surface being slippery; that the pellets, when
loaded on a forklift vehicle, scratched the surface of the ramp when
goods are removed from the upper floor level to the lower floor level
of the delivery area; that within two weeks of the paint
being
applied, the paint on the sloping surface starts peeling off; that
the defendant applied paint on the sloping surface at
six monthly
intervals; and for this reason, Mr Stander had to concede in his
evidence under cross-examination that once the peeling
off starts
manifesting, and this, according to his evidence, occurred within two
weeks of the application of the adhesive paint
on the sloping
surface, same remained unserviced for the remaining period of twenty
four (24) weeks of the six (6) monthly interval.
[27]
Further,
Mr
Coetzee
makes
a point in his submissions that I ought to find that the sloping
surface used to descend from the upper floor level to the
lower floor
level, and in the absence of an alternative route having been
accessible to plaintiff, posed, and indeed constituted
a source of
danger to those persons using it relying heavily on such authorities
as
Kriel
v Premier, Vrystaat,
supra,
at 71E;
Mulcahy
v Model Delicacy Store,
supra,
at 333B;
Probst
v Pick
n
Pay
Retailers (Pty) Ltd,
supra,
at 200; and
Lindsay
v Checkers Supermarket
2008
(4) SA 684
(NPD).
[28]
In
Kriel
v Premier, Vrystaat,
supra,
para [10] at 71E Hattingh J observed:
"'n
Okkupeerder van 'n perseel is onder 'n regsplig om redelike sorg te
dra dat persone wat verwag kan word om op die perseel
te kom nie
beseer word as gevolg van 'n gevaarlike situasie wat op die perseel
aanwesig is nie. ... Dit beteken natuurlik nie dat
so n okkupeerder
ook aanspreeklik is vir die gevolge van n gevaar situasie wat
ontstaan het as gevolg van die onregmatige en onvoorsienbare
optrede
van n vreemdeling nie, tensy die okkupeerder daarvan bewus geword het
en versuim het om die redelike stappe te neem om
skade te verhoed."
[29]
In
Mulcahy
v Model Delicacy Store,
supra,
at 333B Warner J observed as follows:
"In
my view it is inherently dangerous in a shop such as the one in
question to have a floor which is on two levels. Although
this has
been described as a step, it seems to me that it cannot be compared
with a flight of steps. It is proper to consider it
as a floor on two
levels and in my view it is in the nature of a trap. Consequently,
there was a dangerous situation of which the
defendant was aware."
[30]
In
Probst
v Pick
n
Pay
Retailers (Pty) Ltd,
supra,
at 200f Stegman J had this to say:
"The
duty on the keeper of a supermarket to take reasonable steps is not
so onerous as to require that every spillage must
be discovered and
cleaned up as soon as it occurs. Nevertheless, it does require a
system which will ensure that spillages are
not allowed to create
potential hazards for any material length of time, and that they will
be discovered, and the floor made safe,
within reasonable
promptitude."
[31]
And finally, Van der Reiden J, had this to say in
Lindsay
v Checkers Supermarket,
supra,
at 639B:
"I
am satisfied, notwithstanding the plaintiff's inability to pinpoint
the approximate time of the spillage in question, that
the evidence
led by the defendant does not provide support for the argument that
it had an adequate cleaning system in place. Common
sense and the
application of legal principles dictate that the system in place on
the day in question was inadequate to deal timeously
with hazardous
spillage."
[32]
Based on the aforementioned authorities
Mr
Coetzee
submits
that the sloping surface (ramp) constituted a source of danger to
which the defendant had a duty to guard against; that,
on the day in
question, no adequate system was in place or, whatever system there
was in place was inadequate to detect the spillage
on the ramp in
order that those in authority could timeously deal with and remove
such hazardous spillage without delay.
[33]
Mr
Van der Berg,
in
his submissions, moves from the premise that in as much as the
defendant acknowledges it owed a duty of care to all those persons
mentioned in paragraph [7.4] of this judgment, i.e., the defendant's
employees; the representatives of the suppliers of goods;
and their
merchandisers, the defendant denies that it owed such duty of care to
the plaintiff on the basis that the plaintiff did
not fall in the
category of those persons to whom it owed a duty of care, relying on
PQR Boberg:
The
Law of Delict
volume
1 p31 for this proposition. The submission is based on an assertion
that the plaintiff did not fall in the category of foreseeable
plaintiffs to whom harm was reasonably foreseeable. This is based on
a contention that at the time the incident complained of occurred,
the plaintiff was not a merchandiser and thus did not fall in the
category of persons to whom the defendant owed a duty of care.
In
paragraph [22] of this judgment I made a finding that the plaintiff
was indeed employed by her husband as a merchandiser; that
when she
visited the defendant's store on the date the incident occurred, she
visited the defendant's store in that capacity and
that, therefore,
plaintiff falls in the category of persons to whom the defendant owed
a duty of care for the reasons stated in
that paragraph.
[34]
Now that I have found that plaintiff falls in the category of persons
to whom the defendant owed a duty of care, the next question
I have
to determine is whether the defendant negligently failed to discharge
that duty of care as against the plaintiff. It would
appear that the
defendant was well aware that the sloping surface where plaintiff
fell posed a potential hazardous situation hence
its practice of
applying adhesive paint thereon at six-monthly intervals to prevent
the sloping surface being slippery. But
there is also evidence
tendered on behalf of the defendant that the kind of paint applied on
the sloping surface starts peeling
off within two weeks of its
application; that the paint would gradually peel off for the
remaining period until its re-application
on the sloping surface once
a period of six months shall have expired. There is further evidence
tendered on behalf of the defendant
that the sloping surface where
plaintiff slipped and fell is the most used and busiest area in the
defendant's delivery area. There
is further evidence tendered on
behalf of the defendant that prior to the occurrence of the incident
a truck full of load delivered
supplies of varying kinds in the
defendant's delivery area and that it was the defendant's practice
that such load, which appeared
to emanate from the defendant's head
office, had to be offloaded from the truck as quick as possible in
order that, amongst other
things, perishable goods be moved either to
the cool room for storage or to the shop floor area for packing and
in doing so, the
same ramp where plaintiff slipped and fell had of
necessity had to be used. Thus, it is probable that in the process of
such busy,
labour intensive activity, substances emanating from such
products could have been spilled on the sloping surface causing same
to be slippery. The question which ultimately has to be determined is
whether the defendant had an adequate system in place to detect
any
potential hazard in the light of this labour intensive and busy
activity.
[35]
In paragraphs 7.2 and 7.3 of her particulars of claim the plaintiff
pleads that the defendant failed its duty of care by failing
to
ensure that a proper and effective system was in place to guard
against any unknown transparent and slippery substance spilling
over
the sloping surface and that such substance is detected and be
speedily and effectively removed. In this regard there is undisputed
evidence that after the plaintiff had left the defendant's delivery
area and on being assisted into her husband's delivery vehicle,
she
felt that there was moisture at the bottom end of her pair of
trousers caused by a slippery, tough and sticky substance. The
plaintiff's trousers did not have such moisture before the incident
occurred so that the only reasonably inference that could be
drawn
under these circumstances was that such moisture may have been caused
by a substance which may have spilled on the sloping
surface in the
course of removal of produce to elsewhere in the delivery area from
the upper surface level
via
the
sloping surface (ramp). On the basis of evidence tendered at trial it
appeared that, except for meat products, all produce delivered
at the
defendant's then supermarket, including perishables, were received
through the defendant's delivery area at the back of
the supermarket
and thereafter moved over the sloping surface to the rest of the
store area or elsewhere in the supermarket.
[36]
In paragraph [34] of this judgment I referred to a truck load of
varying kinds of products having been delivered at the defendant's
delivery area which had to be removed without delay over the sloping
area to the rest of the defendant's store room and the perishable
products either to the cool room or to the shop floor area for
packing where appropriate. This activity occurred shortly before
the
plaintiff walked, slipped and fell on the sloping area. I have also
mentioned in paragraph [34] of this judgment that in the
course of
such labour intensive and busy removal process, it is probable that
substances emanating from such products, which probably
could be
slippery, could have been spilled on the sloping surface thereby
introducing a further source of danger to persons walking
on the
sloping surface. In this regard the plaintiff alleges in her
particulars of claim that the defendant did not have a proper
and
pro-active system in place to detect whatever spillages there could
have been or could have been caused by removal of such
products from
the upper floor surface,
via
the
sloping surface (ramp) and to the lower floor surface level. Mr
Stander, who tendered evidence for the defendant, testified
about the
cleaning system the defendant had in place at the time which he
described as "Hazard Analysis & Critical Control
Points"
but had to concede in his evidence under cross examination that such
system was merely reactive and not pro-active
in the sense of being
capable of detecting any source of danger which could cause harm to
the person of another.
[37]
Based on the evidence I have just outlined, I have no hesitation to
find that the plaintiff slipped and fell on the sloping
surface as a
result of some slippery and transparent substance spilled on the
sloping surface shortly before plaintiff walked thereon;
that such
slippery and transparent substance was not visible to the naked eye;
that the cleaning system the defendant had at the
time was merely
reactive, and not pro-active in the sense of detecting whatever
spillages there could have been in order to guard
against any
potential harm that could be caused to the person of another; that
the plaintiff slipped and fell on the sloping surface
as a result of
a transparent and slippery substance spilled on the sloping surface
during the course of removal of the products
delivered from the upper
floor level to the lower floor level in the defendant's delivery
area. In this regard, it is appropriate
to reiterate the remarks of
Van der Reiden J, in
Lindsay
v Checkers Supermarket,
supra,
that the evidence led on behalf of the defendant does not provide
support for any contention that it had an adequate cleaning
system in
place designed to detect any potential hazardous situation arising
which could harm the person of another.
[38]
In arriving at the conclusion I arrived at in the preceding
paragraph, I have obviously taken note of
Mr
Van der Berg's
submissions,
supported by oral argument, that in view of the plaintiff having used
the sloping surface in the defendant's delivery
area on many
occasions and for many years without falling and that during all
those many years she at no stage regarded use and
walking on the
sloping surface a risk, thus making a point that the mishap which had
befallen plaintiff could not have been reasonably
foreseeable. This
contention, in my view, does not carry any weight in view of what
appears to be a common cause fact that the
sloping surface where the
plaintiff slipped and fell is the most used and the busiest portion
of the defendant's then premises
which, in itself, ought to have
imposed a concommittant duty on the defendant to adopt such measures
and systems as would have
enabled it to detect any potential hazard
arising and to guard against such hazardous eventuality.
[39]
In its plea, the defendant relies on the following allegations in
support of its contention that the plaintiff was negligent,
namely,
that the plaintiff walked on the sloping surface with footwear that
was smooth underneath; that the plaintiff did not keep
a proper
lookout; and that plaintiff failed to remove the obstruction, namely,
the empty boxes, that were strewn on the steps leading
to the upper
floor level. The last mentioned ground of negligence was not pursued
in argument so that a determination on whether
the plaintiff was
indeed negligent will be made on the basis of whether the plaintiff
kept a proper lookout and on an allegation
that the plaintiff walked
on a sloping surface with footwear that was smooth underneath. It
appears that it is accepted between
the parties that the defendant
bears the onus to prove negligence on the part of plaintiff.
[40]
With regards to the plaintiff's alleged failure to keep a proper
lookout, it is contended on behalf of the defendant that in
view of a
clear visibility and absence of any form of obstruction on the
sloping surface as depicted in photograph 2 in Exh "A",
the
tough, transparent substance on the sloping surface which may have
been the cause of the plaintiff slipping and falling ought
to have
been clearly visible. No evidence was led as to the nature
of
the substance that may have been spilled on the sloping surface and
its measure of visibility, so that any finding as regards
the nature
of such substance and the visibility thereof will be based on sheer
speculation. The only evidence which was led at
trial is that the
plaintiff felt moisture on the bottom end of her pair of trousers
which appeared to have been caused by an ostensibly
slippery
substance which may have been spilled on the sloping surface. In my
view, the defendant has not established, on a preponderance
of
probability, that whatever substance that could have been spilled on
the sloping surface was capable of any form of visibility
with the
naked eye so that this ground of alleged negligence on the part of
plaintiff ought to fail.
[41]
And then there is an allegation of footwear which was smooth
underneath that the plaintiff had on on the day the incident
occurred. The evidence led on behalf of the defendant, in as far as
this aspect of the matter is concerned, is that of Mr Stander
and
Miss Jansen. All that Mr Stander and Miss Jansen could tell the court
is that on the day the incident occurred the plaintiff
had slip-ons
on of the kind similar to Exh 2 produced at trial. The best that Mr
Stander and Miss Jansen could say was that they
saw that the slip-ons
that plaintiff had on were smooth underneath. No evidence was led
as to the texture of the slip-ons, or
on the smoothness or otherwise
of the sole of such slip-ons that plaintiff allegedly had on at the
time. In any event, the defendant's
case on the pleadings is not
based on the plaintiff having had slip-ons on at the time the
incident occurred but rather that the
plaintiff, on the day of the
incident, had on shoes whose soles were smooth or shoes which were
smooth underneath. Mr Stander went
so far as to testify in his
evidence in chief that plaintiff slipped and fell mainly as a result
of the type of shoes she had on
but when questioned on this aspect in
his evidence under cross-examination Mr Stander changed tack and
denied having said the plaintiff
fell mainly as a result of the type
of shoes she had on. As far as Miss Jansen is concerned, it needs to
be stated from the outset,
that she was not a reliable witness. When
it was suggested to her that it would be argued that her evidence be
rejected on the
basis that it is unreliable, she responded by saying
that perhaps
(miskien)
that
will be a correct approach to follow. Consequently, Miss Jansen's
evidence can only be relied on where there is sufficient
corroboration. The evidence of Mr Stander is suspect particularly as
regards the sole cause of the plaintiff slipping and falling
which
justifies this aspect of his evidence being viewed with great
circumspection.
[42]
In any event, at the hearing of this matter, I had all the
opportunity in the world to observe the way the parties tendered
their evidence regarding the footwear plaintiff had on at the time
the incident occurred; the manner they tendered their evidence
and
their demeanour. Based on this approach I am not persuaded that the
version of the plaintiff together with that of her husband,
namely,
that on the day the incident occurred the plaintiff had on shoes
similar to those produced at trial as Exh 1; and that
the plaintiff
always had a pair of shoes on similar to those produced at trial as
Exh 1 whenever she visited the defendant's premises,
is incorrect;
nor am I persuaded that the plaintiff had on footwear similar to that
produced at trial as Exh 2. It therefore follows
that the defendant
failed to show that the plaintiff was negligent in the sense of
having had on footwear similar to that produced
at trial as Exh 2 or
any other form of negligence.
[43]
In conclusion, I thus have no hesitation to find that the defendant
was negligent in that it failed to discharge the duty of
care it owed
to plaintiff by ensuring that the steps leading to the upper level
floor adjacent to the sloping area were accessible
to plaintiff;
failed to ensure that the sloping surface did not pose danger to
those persons using it; failed to ensure that the
steps leading to
the upper floor level were free of obstruction; failed to apply
effective anti-slippery devices and/or substances
designed to ensure
that the sloping surface would not be slippery, and that it had an
effective system in place to detect any source
of danger that could
cause harm to the person of another.
[44]
It therefore follows that the injuries the plaintiff sustained as a
result of having slipped and fell on the sloping surface
in the
defendant's delivery area was as a consequence of negligence on the
part of the defendant.
[45]
In the result the following order is made:
[45.1.]
It is hereby determined that the incident which occurred on 26
September 2007, when the plaintiff slipped and fell on the
sloping
surface (ramp) in the defendant's delivery area, was as a result of
negligence on the part of the defendant and/or its
employees;
[45.2.]
That the defendant is liable to plaintiff in respect of damages
sustained the quantum of which is yet to be proved.
[45.3.]
The defendant is ordered to pay plaintiff's costs, on a party and
party scale, duly taxed or as agreed.
N
J YEKISO, J