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CASE NO. 1328/2005

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

ELIZABETH HELEN ROETS PLAINTIFF

and

MAIN MARKET DEFENDANT

_______________________________________________________________________________

JUDGMENT

_______________________________________________________________________________

MOGOENG JP.

[1] During the lunch hour on 08 March 2005, the Plaintiff, Elizabeth Hellen Roets, had just bought food from the fast foods section of the Defendant’s supermarket, Mafikeng Main Market, which is situated at the corner of First Lane and Second Street, Mafikeng, when she fell on a slippery surface on the floor. As a result she hurt her left foot, her right knee and her head.

[2] She alleges that she slipped, fell and injured herself as a result of the negligent conduct of the Defendant’s servants, acting in the course and scope of their employment, and claims damages from the Defendant in consequence.

[3] The grounds of negligence pleaded in paragraph 9 of the Particulars of Claim are that the Defendant and/or its employees failed to:

3.1 clean the floor when it or they could and should have done it;

3.2 warn the public about the potentially dangerous liquid substance on the floor;

3.3 keep the public away from the spot on which the liquid had spilt;

3.4 prevent the incident when it or they could have prevented it with due care and diligence.

[4] In its plea, the Defendant admits that the Plaintiff slipped and fell on its slippery surface but denies that it is in any way liable for the damages suffered. The Defendant further pleads that in the event of this Court finding that it was negligent, then the Court should find that the Plaintiff was also negligent and that her negligence contributed to her fall and consequent damages.

[5] Three witnesses were called to testify before this Court. The Plaintiff was the only one to testify in support of her case. Mr Joe Dennis Gomez, one of the owners of Mafikeng Main Market (“the Defendant”), and Ms Bertha Gosiamemang Maamogoa, one of the Defendant’s supervisors, testified on behalf of the Defendant.

[6] The parties’ evidence basically boils down to the summary set out below. The Defendant has employed several employees to clean up any spillages and to remove any object which could pose danger to its customers. They, together with all the other members of staff, have been given strict instructions to ensure that anything which poses potential danger to the Defendant’s customers is removed and/or cleaned up within 15–20 minutes of the potential danger arising.

[7] On 08 March 2005, during the busy lunch hour, the Plaintiff went to buy lunch from the Defendant. She was served by the fast foods section, of which Ms Maamogoa is a supervisor. This section is virtually one with the butchery section. The total number of employees serving at both sections at the relevant time was six.

[8] Ms Maamogoa testified that she saw the soup when it spilled from the soup-container of one of the customers. A customer, who had just bought soup, accidentally spilled a minute quantity of the soup on the floor about 2 metres from the butchery service point. This spillage left several visible drops of soup on the floor.

[9] Ms Maamogoa immediately realised the potential danger that the spillage posed to the Defendant’s customers. She then left the service-point and went somewhere towards the back of the store where the cleaner of the affected section was, to call her. When she returned with the cleaner, the Plaintiff had already slipped and fallen as a result of the spillage. When Ms Maamogoa went to call the cleaner, there were five other staff members with her at the service-counter and many customers not far from the spillage, waiting to be served. She neither asked one of the five staff members behind the counter to stay at the dangerous spot while she went to call the cleaner nor did she or any of her co-workers caution the customers about the spillage. These are the facts on which this case turns.

[10] The Plaintiff’s own version is that after she had been served, she walked away from the service point to the pay point. On her way thereto, her feet landed on the spillage. She slipped and fell to the ground and hurt herself. She did not see the spillage before she landed on it and fell.

[11] The issue to be decided is whether or not the damages suffered by the Plaintiff are as a consequence of the Defendant’s sole negligence. Holmes JA had the following to say about the circumstances under which one could be said to have acted negligently in Kruger v Cotzee 1966 (2) SA 428 (A) at 430E–H:

“For the purpose 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.”

The precautionary measures taken by the Defendant are obviously a recognition of the duty of care which it owes to its customers, to ensure that they are reasonably safe as they walk about its supermarket.

[12] Customers are entitled to expect that they could walk in supermarkets with safety. They would probably be reluctant to enter any shop which cautions or requires of them to go about their shopping expecting to slip or be tripped at any time. (See Brauns v Shoprite Checkers (Pty) Ltd 2004 (6) SA 211 (ECD) at 217F). This is further explained by the following remarks of Stegman J in Probst v Pick ʼn Pay Retailers (Pty) Ltd [1998] 2 ALL SA 186 (W) at 200d in respect of the floor of a supermarket which had become slippery after cooking oil had been spilt on it:

“As a matter of law, the defendants [the supermarket] 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 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.”

(My emphasis)

[13] Mr Trusler, for the Defendant, submitted that this case is not one of the usual supermarket slip-and-fall cases for the reasons set out below. As soon as the supervisor saw the spillage, she walked fast to call the cleaner. That trip was subsequently timed in preparation for this trial and it takes only 25 seconds to walk that distance at a quick pace. The Defendant therefore, according to Mr Trusler, responded quickly to address the dangerous spillage. Reasonable and prompt action was, according to Mr Trusler, taken to guard against the potential injury. Mr Trusler submitted further that the judgment that best deals with this matter is that of Willis J in Monteoli v Woolworths (Pty) Ltd 2000 (4) SA 735 (W) at paragraphs 37–39. It is necessary to reproduce all three paragraphs and I do so below:

“[37] It seems to me that in the context of a supermarket or something similar, before the presence of produce such as green beans on the floor can give rise to an inference of negligence, there must be some evidence of either a direct or circumstantial nature that the defendant, at the time of the accident:

(i) ought to have taken steps to prevent the presence of beans on the floor from occurring; alternatively,

(ii) knew; or

(iii) ought to have been aware of their presence; and

(iv) failed to take reasonable steps to remove the offending items forthwith.

[38] It seems common cause that the three beans must have fallen from another shopper’s bag. There is nothing to suggest that the defendant could have taken reasonable steps to prevent this from occurring. The fall of beans from a bag would not occur so as to create a noise such that was probable that the staff of the defendant would immediately have become aware of it. Three beans, especially in the place where they were, would not have been so obviously conspicuous that it could have been expected that the staff would immediately have become aware of them. The sight of three green beans on the floor is not such that it is highly probable that another customer would immediately have drawn the attention of the staff of the defendant to the fact of their presence. It seems to me, in any event, that a bean lying on the floor has a somewhat different character from a spillage.

[39] The case of City of Salisbury v King 1970 (2) SA 528 (RA) had facts remarkably similar to those in this case: in that case a woman slipped and fell on a piece of vegetable matter; the place was a vegetable market. The Court said at 538H–529A:

‘It would not be possible for the appellant to prevent vegetable matter finding its way on to the floor no matter what precautions were taken. It follows from this that the mere presence of vegetable matter on the floor of the market during marketing hours is not, in itself, prima facie evidence of negligence on the part of the appellant.’

And at 529B:

‘There was no evidence which established that the appellant had a reasonable opportunity of removing the vegetable matter in question before the accident occurred and no evidence that the appellant had failed to avail itself of such an opportunity. On the evidence led, the possibility exists that the vegetable matter had fallen to the ground only seconds before the respondent slipped on it. It is possible, for instance, that it fell from the basket of a customer leaving the market immediately ahead of the respondent and, of course, there are other similar possibilities.’ ”

[14] I agree with Mr Roussouw, for the Plaintiff, that unlike in the Monteoli case and the Salisbury case, the Defendant’s employees or at least one of them actually became aware of the spillage at the time when it occurred. The duty of care which the Defendant owed to the Plaintiff in the circumstances required reasonable and prompt preventative action from the Defendant through its employees. They did not have to wait for the ten to fifteen minutes mentioned in some decided cases (Probst supra at 199a–b) as apparently being reasonable time for the removal of the danger. The spillage required to be attended to without further ado.

[15] The reasonable steps that could have been taken are, inter alia: (i) to audibly and repeatedly warn the customers who were milling around the butchery and fast foods area of the dangerous situation created by the spillage; and/or (ii) to post a staff member at the potentially dangerous spot while another staff member went to call a cleaner to mop up the spillage. These are the possibilities which Mr Roussouw pertinently put to the supervisor and all the supervisor could say was that the only thing she could think of at the time was to call a cleaner to clean up the mess.

[16] Having regard to the facts of this case, the question whether or not the Defendant was negligent and whether or not its negligence is the direct cause of the Plaintiff’s injuries and the damages she has suffered is also addressed by the following quotation from the judgment of Jones J in Braun’s supra at 218D–I:

“The question is whether or not harm was reasonably preventable, and whether or not the steps taken by the supermarket to prevent it were reasonable and adequate in the circumstances.

. . . . . . . .

It is common cause that the defendant put up no signs to warn customers of water on the floor. There is also no suggestion of warnings broadcast on the loudspeaker system. . . . The evidence is that no cardboard or other substance was put on the wet floor to make it safe for customers until the spillage was cleaned up. I believe that these are the steps which could have been taken without any undue inconvenience or cost to the defendant. There is no explanation why they were not taken.”

[17] Having foreseen the reasonable possibility of the spillage causing its customers to slip and be hurt, the Defendant, as a reasonable person in its position would have done, should have taken any of the aforegoing reasonable steps to guard against any of the many customers milling around the spillage slipping, but it failed to do so. I am satisfied that the Defendant was negligent and is therefore liable for the damages suffered by the Plaintiff. The Plaintiff could not reasonably have been expected to keep her eyes on the floor at all times just so that in case there was a spillage, she should be able to see it and to avoid it.

[18] Contributory negligence was pleaded by the Defendant. Although it was neither pursued when evidence was led nor during cross-examination, nor during the address by Mr Trusler, it was never abandoned. It must, therefore, be pronounced upon. It suffices to say that no shred of evidence was led or extracted from any of the witnesses who testified, that the Plaintiff in any way contributed to her slipping and to the damages that she suffered. A comparable and instructive position was best captured by the remarks of Stegman J in the Probst case supra at 194c–d to the effect that:

“The plaintiff in the present matter undoubtedly had to take the care for her own safety which was to be expected of a reasonable man in her position.

The reasonable man in a supermarket is not expected to be looking down at the ground at every step he takes. He is entitled, generally speaking, to accept that the floor is kept in a clean and safe condition, and that he may direct his attention to the shelves, to look for the goods he has come to buy, rather than to look out for possible hazards on the floor. And when, as in the present case, he has made a choice of goods it seems to me that he is entitled to turn his attention to the shopping trolley in which he wishes to lead them, without necessarily having to examine the condition of the floor between himself and the trolley.”

[19] The conclusion at page 201d of the same case is also apposite here:

“The plaintiff was not shown to have failed to take due care for her own safety. She was entitled to move about the shop floor whilst keeping her attention focused on the goods on the shelves and on her trolley, and without examining the floor to see that her footing would be safe at each step.”

The supervisor testified that the drops of soup were small. They could not, therefore, be said to have been so obviously visible, that a reasonable person in the position of the Plaintiff could have readily seen and avoided them. The result is that the Defendant has not discharged the onus of proving contributory negligence on the part of the Plaintiff.

[20] In the result, the following order is made:

1. It is declared that the Defendant is liable to the Plaintiff for such damages as she is able to prove in consequence of having fallen in the Defendant’s supermarket on 08 March 2005;

2. The Defendant’s plea of contributory negligence is dismissed;

3. The remaining issues are postponed for adjudication on a date to be arranged between the parties and the Registrar; and

4. The Defendant is ordered to pay the costs of the hearing of the issues already determined in this judgment.

__________________

M.T.R. MOGOENG

JUDGE PRESIDENT OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 22 AUGUST 2006

DATE OF JUDGMENT : 21 SEPTEMBER 2006

COUNSEL FOR THE PLAINTIFF : ADV A.B. ROUSSOUW

COUNSEL FOR THE DEFENDANT : ADV A.R. TRUSLER

ATTORNEYS FOR THE PLAINTIFF : BOTHA COETZER SMITH

ATTORNEYS FOR THE DEFENDANT : VAN ROOYEN TLHAPI WESSELS INC.

(Instructed By VAN VELDEN-DUFFEY)

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