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IN THE HIGH COURT OF SOUTH AFRICA

NATAL PROVINCIAL DIVISION

REPORTABLE

CASE NO. 757/06

 

In the matter between:

ESME LINDSAY Plaintiff

and

CHECKERS SUPERMARKET Defendant

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J U D G M E N T

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VAN DER REYDEN J

The plaintiff claims damages from the defendant in the sum of R465,000-00, arising  from injuries sustained when she slipped on an oily substance on the floor of defendant’s supermarket.

At the commencement of the trial and at the request of the parties an order was granted in terms of Rule 33(4) for the issues of liability to be dealt with separately and the issue of quantum to be stayed.

It is not in issue that the plaintiff slipped on an oily substance on the floor of defendant’s supermarket and fell.

At the commencement of the trial contributory negligence on complainant’s part was raised. However as the evidence unfolded, Mr De Beer, on behalf of the defendant, abandoned this issue.

I am satisfied that this concession was rightly made. The only issues remaining are the alleged negligence and unlawfulness on the part of the defendant.

During the trial the following facts are either common cause or not disputed.

1.         The complainant went to the defendant’s supermarket on 16 September 2005 at approximately quarter to six, six o’clock that afternoon to purchase chicken fillets.

2.         After she selected her purchase she placed it in a shopping basket which she had over her arm.

3.         As she made her way to the till to pay for her purchase she slipped on a oily substance on the floor in the fruit and vegetable section which caused her to loose her balance and she fell.

4.         She was disorientated after the fall.   Mrs Sharlene Gobichand, at the time an administrative manager of the defendant, came to the plaintiff’s assistance where she found the plaintiff sitting on the floor.   Mrs Gobichand noticed oil around the complainant.   Her estimate of the area covered by the oil was plus minus 48 by 40 centimetres.

Before dealing with the evidence led on behalf of the defendant it is necessary to set out briefly what a plaintiff in the “slippery shop floor” cases has to prove.

In Kruger v Coetzee 1966(2) SA 428(A) Holmes JA formulated the test for 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.

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.”

 

Requirement (a)(ii) supra has been adapted and applied in recent slippery shop floor surfaces.  

Stegman J in Probst v Pick ‘n Pay Retailers (PTY) Ltd [1998] 2 All SA 186(W) having considered a conspectus of cases dealing with slippery shop floors held that:

“The duty on the keepers 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, with reasonable promptitude.”

Mr De Beer argued that the defendant took all reasonable steps to ensure that any spillage which may occur in the supermarket is made safe and dealt with reasonable promptitude.

He argued that in the absence of any evidence on the plaintiff’s part to show for what period the oil patch which caused her to slip and fall, had remained undetected should absolve the defendant from liability for damages claimed by her.   He argued that having regard to the cleaning system in place in the defendant’s supermarket the oil spillage must have occurred shortly before the complainant came to grief.

In order to consider the merits of Mr de Beer’s submission the system relied upon by the defendant needs closer scrutiny.

It is again common cause or not disputed that:

 

1.         The floor area of the supermarket in question covers approximately 15,000 square metres with plus minus 22 aisles in which products are displayed.

2.         A company or concern called Super Care Cleaning (Super Care) was at the time responsible for cleaning the store on a daily basis.

3.         Before the store opened at 8 o’clock in the morning the entire store is cleaned.   Thereafter the floors are maintained by 2 cleaners from 9.00 am to 2.00 pm.

4.         Cleaning staff of Super Care are trained in the use of brooms, mops and the use of other cleaning equipment and to put up “Wet Floor” signs if there is a spillage or when they are mopping up.

5.         During the afternoon from 2 pm only one cleaner remains on duty to clean the floors where required and to deal with spillages.

6.         There are no Super Care supervisors in the store during the day.   One of the cleaners would be appointed as a team leader “with a little bit of authority” over the other cleaners.

7.         Late afternoons, apart from the one cleaner, about 6 staff members are physically on the floor pricing and packing merchandise.   Staff members are instructed to cordon off spillages and report it to management or to call in the cleaner themselves to clear up the spillage.

8.         The only steps taken to ensure that the cleaners are doing their work consisted of a weekly visit of the Area Manager of Super Care for a  report back from the client and to “see how everything was running”.   Should the client raise any concerns the Area Manager would convey it to the team leader and cleaners on site.

9.         With regard to spillages after 2 pm the evidence of Super Care is that the only cleaner left on the floor “has to go up all the aisles and check.   Spillages are normally in the fruit, vegetable and perishables sections.   Should a spillage occur in an area where the cleaner is not present, Checkers staff would page for the cleaner to attend to the spillage.

10.       The Area Manager of Super Care highlighted fruit and vegetables and meat aisles where milk, frozen vegetables, chicken and perishables are displayed as danger areas.

11.       Two similar incidents prior to the plaintiff’s mishap occurred.

It is against this background that the question whether the defendant had a proper system in place to deal with promptitude with spillages has to be considered.

It is trite law as confirmed in judgments from out courts over an extensive period, that shopkeepers owe a duty to persons entering their shops “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 focused 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.”

Per Stegman J: Probst  (supra).   200e

As far as requirement (a)(ii) formulated by Holmes JA in Kruger (supra) is concerned, Stegman J, in Probst (supra) applied it as follows:

“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, with reasonable promptitude.”

 

Per Stegman J,  p. (supra). 200f

 

In Monteoli v Woolworths (Pty) Ltd 2000(4) SA 735 the majority of the Court (Willis and Labe JJ) criticised Stegman J’s application of the res ipsa loquitur principle and held that the onus at all times rests upon the plaintiff to prove that the shopkeeper was at fault (wrongful) and negligent. The majority in Monteoli (supra) found that “there was no evidence remotely to suggest that the cleaning system failed on the day in question.    On the contrary rigorous cross-examination on behalf of the appellant brought forth answers to suggest that it had been working normally.”

P. 745 G.

Goldblatt J, who wrote the minority judgment relied on dicta of Stratford CJ and Tindal JA in Naude NO v Transvaal Boot and Shoe Manufacturing Co 1938 AD 379 at 398-9 (Stratford CJ) and 392-3 ((Tindal JA) to reach the following conclusion in favour of the appellant:

“I am satisfied that on the basis set out in Naude N.O. v Transvaal Boot & Shoe Manufacturing cc (supra) ‘The defendant’s evidence goes no further than to show that the precaution may or may not have been taken.’ The mere fact that it is proved that a system is in place does not, in my view, prove that its failure to prevent the occurrence was not due to negligence of the party seeking to displace the inference of negligence.”  P. 741 E

I am in respectful agreement with GOLDBLATT J’s approach.

If effect is to be given to the majority judgment in Monteoli (supra) plaintiffs    will be faced with an onus, which in some cases, would be impossible to discharge.

The emphasis on the length of time the spillage remained undetected without consideration of the adequacy of the cleaning system is an artificial and unrealistic test.

 

Certain shopping areas in a supermarket require more vigilant supervision and cleaning of spillages, namely the fruit and vegetable, frozen food, milk and cooking oil sections, as confirmed by the plaintiff’s and defendant’s witnesses.

 

The adequacy of the system has also to be considered against the number of cleaning staff allocated to deal with spillages and the floor area and number of shopping aisles.   If for example a supermarket has 4 or 5 aisles where, from experience, it is known that spillages do occur, the system can only respond with promptitude if a cleaner is stationed at each of these potential hazardous zones.   No hard or fast rule can be laid down.   Obviously each case has to be considered on its own facts.

 

In the present case only one cleaner was on duty to deal with hazardous spillages in the shop with a floor space of 15,000 square metres and plus minus 22 shopping aisles supported by possible detection of spillages by 6 staff members engaged in pricing and packing of merchandise.

 

Having regard to the vast floor area and the number of shopping aisles, there is no merit in Mr de Beer’s argument that the system relied on by the plaintiff was adequate.    It requires little imagination that for one lonely cleaner and 6 staff members otherwise engaged to deal timely with hazardous spillages between 2 pm and 6 pm in a store of that size is an impossibility.

 

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 timely with hazardous spillage.

 

I am satisfied that the plaintiff has discharged the onus resting on her and has shown that the defendant’s failure to implement an adequate cleaning system was unlawful and negligent and the sole cause of the plaintiff’s fall.

 

In the result:

 

1.         The plaintiff’s claim against the defendant on the merits succeeds and the defendant is liable to the plaintiff for such damages she may have suffered in consequence of her fall in the defendant’s supermarket at Pinetown on 16 September 2005.

2.         The defendant is ordered to pay the plaintiff’s costs relating to the issues disposed of by this order.

DATE OF HEARING: 3 & 4 September 2007.

DATE OF DELIVERY: 28 NOVEMBER 2007

 

PLAINTIFF’S COUNSEL: ADV. MG CHETTY

PLAINTIFF’S ATTORNEYS: JENNIFER ANTHOO & ASSOCIATES

REF.: JA/LS9/PS (Tel.: 033 3459123/4)

DEFENDANT’S COUNSEL: ADV AH DE BEER

DEFENDANT’S ATTORNEYS: MOONEY FORD ATTORNEYS c/o AUSTEN SMITH

REF.:  Mr P Dewes (Tel.:033 3920500)

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