Kruger Incorporated | Attorneys Notaries Conveyancers
The Supreme Court of Appeal (SCA) has, on 19 December 2022, handed down a judgment in a delictual claim for damages resulting from a slip and fall incident. These types of incidents and claims have become quite a regular occurrence in South African courts, and the principles that courts apply when judging these matters, have often become blurred, often leading to conflicting judgments.
This judgment, however, finally gives much-needed clarity on the limits which need to be applied to principles detailed in the locus classicus matter of Chartaprops 16 (Pty) Ltd and Another v Silberman 2009 (1) SA 265 (SCA), which has become most defendants’ default defence to these claims.
The facts and background
On the rainy morning of 1 June 2013, the plaintiff went to the Goodwood Mall in Cape Town to withdraw money from an ATM. On her way to the ATM, the plaintiff slipped and fell on the mall’s wet tiled floor, suffering a fracture of her elbow. The plaintiff instituted an action in the Western Cape Division of the High Court against the mall’s management company, Cenprop Real Estate, and its owner, Naheel Investments (“the defendants”), claiming damages resulting from her injury.
The court a quo dismissed the plaintiff’s claim, but it was appealed to a full bench, and the finding of the court a quo was overturned. The full bench ordered the defendants to pay damages to the plaintiff. Unsatisfied with the ruling, the defendants, now appealed the full bench’s decision to the SCA.
The arguments
The defendants denied negligence, based on the following:
- They argued that the incident was solely the result of the plaintiff’s own negligence.
- They argued that they had hired competent independent contractors to manage the mall, including a cleaning company and a security company, and that this protected them from liability. This argument is, to somewhat oversimplify, the argument used in the Chartaprops matter.
- They argued that the mall’s “disclaimer sign” excused them from liability.
- Lastly, they argued that the plaintiff was contributorily negligent – meaning that if the SCA found them to be liable in any respect, they should only be liable for a part of the plaintiff’s claim as she had, in their view, contributed to the incident.
The judgment
The SCA found that the defendants were indeed negligent, as they had failed to ensure that the floor was safe for use by members of the public, specifically the plaintiff. This means, that SCA agreed with the finding of the full bench.
The court also found that the defence of independent contractors was not applicable and that the plaintiff was not contributorily negligent. The court also held that the “disclaimer notice” sign was not effective in excluding liability, as it did not specifically refer to wet floors, and was somewhat obstructed from the public’s view.
Analysis of the judgment
Attorneys who specialise in public liability claims (such as this matter), will know that this judgment is based on numerous considerations which are present in almost every matter of this sort. Some of these include:
The “wet floor tiles”
Wet floor tiles, especially when caused by rain, are a double-edged sword in public liability matters. On the one hand, a plaintiff would argue that wet floors create a clear hazard and that the possibility of injury to the plaintiff can reasonably be foreseen. On the other hand, a defendant could argue (as it did in this matter), that the plaintiff can see the hazard, and should be extra careful. Both these arguments have had merits in the past, and the court would often end up splitting the liability between the parties.
So why has the court, in this matter, found that the plaintiff did not contribute to her own harm? The answer: A clever litigation tactic by the plaintiff who appointed an architect as an expert witness. The architect testified that the tiles themselves became wholly unsuited for a public space when they were wet. In an effort to counter this move by the plaintiff, the defendants appointed their own architect who conceded that he agreed with the plaintiff’s argument about the suitability of the tiles when wet. Factually, the court found that, as the plaintiff was carrying a baby in her arms, it is probable that the plaintiff was extra careful when walking on the wet tiles, but slipped anyway.
The hiring of sub-contractors
Shopping centres, malls, and larger stores often appoint sub-contractors to attend to certain functions, most often cleaning and security. This was the case in this matter. The service level agreement (“SLA”) entered into between a shopping centre or mall and the cleaning company usually contains a detailed explanation of what services would be rendered by the cleaning company, and critically, usually contains an indemnity from the cleaning company to the shopping centre or mall. This indemnity means that should any member of the public suffer injury due to a failure by the cleaning company to effectively fulfil its duties (as agreed upon in the SLA), the cleaning company will step into the position of the shopping centre or mall when a claim is brought by the injured member of the public. The claimant will then need to institute an action against the cleaning company in their own name as well.
Interestingly, this did not happen in this matter. The plaintiff only claimed from the centre management and owners, even though an SLA with a cleaning company was in place. This was a gamble, which, luckily for the plaintiff, worked out well when the court found that the duties of the cleaning company had not been accurately detailed in the SLA the defendants put into evidence and that the defendants had not done enough to discharge their duty towards the public.
The disclaimer
The use of a disclaimer sign as a defence has, in itself, produced many conflicting judgments from our courts. What has, however, become clear over the years is that a disclaimer is in no way an absolute defence. Many defendants (and their attorneys) have wrongfully relied on the mere presence of a disclaimer to be enough of a defence against claims. It was highlighted again, in this matter, that the successful use of the disclaimer defence has a factual element to it, and the onus is on the defendant to prove that the plaintiff saw the disclaimer and had the time to familiarise itself with the contents and extent thereof and that the plaintiff understood or reasonably should have understood the meaning and extent of the disclaimer.
In this matter, the defendant produced photographs of the disclaimer taken some time after the incident occurred. The disclaimer was also partially obstructed from the public’s view. Accordingly, the court held that the alleged existence of the disclaimer (which the defendant could not prove) was insufficient.
Conclusion
This judgment contains no ground-breaking interpretation of the law or previous findings. Attorneys are, or ought to be, well aware of the correct interpretation of all the factors considered in this judgment. What this judgment does give, however, is a brilliant clarification of various considerations in respect of the well-established factors. At last, plaintiffs have strong authority to rely on when arguments are made for claims of this nature against defendants who have much deeper pockets. This is a win for plaintiffs everywhere.
READ THE FULL JUDGMENT HERE: http://saflii.org/za/cases/ZASCA/2022/183.html