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[2010] ZAECGHC 26
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Toplass v Shoprite Checkers (CA 111/2009) [2010] ZAECGHC 26 (15 April 2010)
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IN THE HIGH COURT OF SOUTH AFRICA REPORTABLE
(EASTERN CAPE, GRAHAMSTOWN)
Case No.: CA111/2009
Date heard: 26 March 2010
Date delivered: 15 April 2010
In the matter between:
RUSSEL W TOPLASS Appellant
and
SHOPRITE HOLDINGS Respondent
______________________________________________________________
JUDGMENT
______________________________________________________________
KROON, J:
Introduction
This judgment concerns an appeal against the decision of a magistrate’s court in terms of which the appellant was non-suited and judgment was entered in the respondent’s favour with costs. The claim of the appellant arose out of an incident during the early afternoon of Sunday 20 November 2005 when he slipped and fell on a slippery substance on the floor of the respondent’s supermarket at Greenacres, Port Elizabeth. Alleging that the fall was caused by the negligent conduct of the respondent’s servants, acting in the course and scope of their employment, the appellant sought the recovery of damages arising out of the injuries sustained by him in consequence of the fall. The magistrate, however, held that the appellant had not discharged the onus of establishing negligence on the part of the respondent’s servants.
The Pleadings
At a pre-trial conference the parties agreed to proceed to trial on the issue of negligence only, and to let the issue of the quantum of damages stand over for determination at a later stage. The trial before the magistrate proceeded on that basis.
The respondent’s plea put the entire incident in issue, but it became common cause, or at least no longer in dispute, that the appellant had indeed, as he alleged, slipped and fallen as a result of stepping into a pool of a fluid substance on the floor of the supermarket.
The grounds of negligence on the part of the respondent’s servants pleaded in the appellant’s particulars of claim were framed as follows:
‘4.1 They failed to keep the floor and aisles of the Defendant’s store clean and free of slippery substances;
4.2 They failed to take steps to warn the public, in particular the Plaintiff, of the presence of this slippery substance;
4.3 They failed to take all reasonable steps to prevent the incident from occurring.’
The respondent’s plea denied that its servants had been negligent, either as alleged or at all, and pleaded that the incident, if in fact it occurred, was caused solely by the negligence of the plaintiff himself. In the alternative, the plea raised the partial defence of contributory negligence on the part of the appellant.
However, on appeal, as in the court below, counsel for the respondent did not pursue the contention that the appellant was to be visited with a finding of negligence on his part. That attitude was correct. See eg Brauns v Shoprite Checkers (Pty) Ltd1 where, in essence, it was held that a shopper in a supermarket was entitled to move about the shop floor whilst keeping his or her attention focussed on the shelves without examining the floor to see that his or her footing would be safe at each step.
As will be elucidated below, the respondent, at the trial, invoked the fact that it had engaged the services of an independent contractor to attend to the cleaning of the premises of its supermarket. On appeal some point was sought to be made of the fact that no reference to the engagement of an independent contractor was made in the respondent’s plea. However, not only did the appellant in fact have advance notice of the respondent’s intention to raise this question, but the issue was also fully aired at the trial. The court is accordingly obliged to have regard to the evidence adduced on this score.
The magistrate’s judgment
Regrettably, the magistrate’s judgment is not of any assistance. After commenting that because the proceedings were mechanically recorded he did not intend to ‘dwell much’ on the facts, the magistrate merely recorded, as facts found proved, that on the day in question the appellant slipped while shopping at the respondent’s self-service store, and that the respondent had engaged the services of a concern styled ‘Mr Clean’ to clean its floors.
The only reasons that the magistrate set out in his judgment for the conclusion reached by him were, first, that it was unclear whether the appellant slipped on water or a watery substance and, second, that the evidence did not indicate for how long the water spillage was on the floor and unattended (in regard to which the magistrate cited the case of Manteoli v Woolworths (Pty) Ltd.2
In response to a notice in terms of magistrate’s court rule 51(1) requesting the magistrate to set out the facts he found proved and the reasons for his judgment the magistrate merely intimated that he had nothing to add. It is clear that the magistrate gave no proper attention to what was required of him in the matter of furnishing reasons for the conclusion reached by him.
In my judgment, it matters not whether the substance on which the appellant slipped was water or a watery substance. As to the second aspect mentioned by the magistrate it may be commented that, as will appear from the legal principles set out below, a supermarket owner is not a guarantor of its customers’ safety and the law does not place on it a duty to ensure that it becomes aware of, and cleans up, any spillage on its floors immediately same occurs. Accordingly, the length of time that the spillage in question was left unattended is a relevant question. However, it is a fair comment that only rarely will the victim of a slip on a supermarket floor have the evidence available to furnish the answer to that question. The ultimate issue is whether causal negligence on the part of the supermarket’s servants has been established.
Legal principles applicable
The test for negligence in our law was stated thus in Kruger v Coetzee:3
‘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.’
The cases are not harmonious as to whether proof by a claimant that he slipped on a spillage on a supermarket floor brings the res ipsa loquitur rule into operation. This question need not detain us. As was stated in Checkers Supermarket v Lindsay:4
‘Properly considered the res ipsa loquitur doctrine is irrelevant in this matter to the issue that called for determination. The High Court, quite properly, posed the correct question after considering the evidence led: whether the appellant “had a proper system in place to deal with promptitude with spillages”. It was, thus, unnecessary to engage in any discussion about the res ipsa loquitur doctrine.’ (Footnote omitted).
In respect of the respondent’s engagement of the services of Mr Clean to keep its floors clean and safe it was further pointed out in Brauns5 that a supermarket owner is not entitled to contract out of its duty to a shopper visiting its premises in circumstances where the latter is not a party to the contract. Accordingly, it is not sufficient for the supermarket owner, without anything more, merely to point to the fact that it had concluded a contract with a cleaning contractor in terms of which the latter undertook responsibility for keeping the floors of the supermarket clean and safe.
On the other hand, it is a general rule of our common law that a principal is not visited with liability for the civil wrongs of an independent contractor, or the latter’s servants, save where the principal was personally at fault.6 In Chartaprops7 the position was stated thus:
‘[42]
More recently Langley
Fox Building Partnership (Pty) Ltd v De Valence
1991
(1) SA 1 (A) .
acknowledged the general rule of no liability of a principal for the
civil wrongs of an independent contractor except where the
principal
was personally at fault. The test for negligence in a case such as
this, consonant with the classic test for culpa
laid
down in Kruger
v Coetzee,
Above
n34.
was set out by Goldstone AJA as follows (at 12H - J):
(a) (W)ould a reasonable man have foreseen the risk of danger in consequence of the work he employed the contractor to perform? If so,
(b) would a reasonable man have taken steps to guard against the danger? If so,
(c) were such steps duly taken in the case in question?
[43] In determining
the answer to the second enquiry into negligence, Goldstone AJA
emphasised the following, albeit by no means
exhaustive, list of
factors (at 13B):
(T)he nature of the danger; the context in which the danger may arise; the degree of expertise available to the employer and the independent contractor respectively; and the means available to the employer to avert the danger.(Footnotes omitted).
Paragraphs 45, 46 and 48 of the judgment read as follows:8
‘[45] There are few operations entrusted to an independent contractor by a principal that are not capable, if due precautions are not observed, of being sources of danger to others. If a principal were to be held liable for that reason alone the distinction between 'employee' and 'independent contractor' will all but disappear from our law. This plainly is not the type of case where it can be said that Chartaprops negligently selected an independent contractor or that it so interfered with the work that damage resulted or that it authorised or ratified the wrongful act. The matter thus falls to be decided on the basis that the damage complained of was caused solely by the wrongful act or omission of the independent contractor, Advanced Cleaning, or its employees.
[46] Chartaprops did
not merely content itself with contracting Advanced Cleaning to
perform the cleaning services in the shopping
mall. It did more. Its
centre manager consulted with the cleaning supervisor each morning
and personally inspected the floors of
the shopping mall on a regular
basis to ensure that they had been properly cleaned. If any spillage
or litter was observed, he
ensured its immediate removal. That being
so it seems to me that Chartaprops did all that a reasonable person
could do towards
seeing that the floors of the shopping mall were
safe. Where, as here, the duty is to take care that the premises are
safe I cannot
see how it can be discharged better than by the
employment of a competent contractor. That was done by Chartaprops in
this case,
who had no means of knowing that the work of Advanced
Cleaning was defective. Chartaprops, as a matter of fact, had taken
the care
which was incumbent on it to make the premises reasonably
safe.
…………
[48] Chartaprops was obliged to take no more than reasonable steps to guard against foreseeable harm to the public. In this regard, it is well to recall the words of Scott JA in Pretoria City Council v De Jager :
1997 (2) SA 46 (A)
([1997] 1 All SA 635) at 55I (SA).
‘Whether in any particular case the steps actually taken are to be regarded as reasonable or not depends upon a consideration of all the facts and circumstances of the case. It follows that merely because the harm which was foreseeable did eventuate does not mean that the steps taken were necessarily unreasonable. Ultimately the inquiry involves a value judgment.’
Applying that test I
am satisfied that the High Court erred in holding Chartaprops liable.
Its finding in relation to Advanced Cleaning,
however, cannot be
faulted.’ (Footnotes omitted).
The evidence
The appellant’s evidence was in essence as follows. He arrived at the supermarket to do some shopping at approximately lunch time, accompanied by a male companion. The store was due to close at 14h00. After proceeding through the turnstile he turned left to walk along the aisle between the tills on his left and the shelves on his right. His attention was on the shelves he was passing. Some other shoppers were walking ahead of him while others were approaching in his direction, but the stall was not really busy. After passing a number of the tills (only some of which were manned), and when he was approximately opposite an island refrigerator – which was at the start of the fruit and vegetable section – he slipped and fell. He observed that the cause of his slipping was a pool of what he described as a thick (ie thicker than water, and even oil), clear fluid substance. The size of the pool was approximately ‘30cm x 30cm’, but in slipping on it he ‘obviously spread it a little further’. He could not give a closer description of what the substance was.
Initially, one of the till operators was called to assist the appellant, and thereafter the manager of the store was summoned and details of the incident as well as the appellant’s personal particulars were given to him. Prior to the manager’s appearance, and after a period estimated by the appellant to be between approximately 7 to 10 minutes after the incident, the spillage was cleaned up by a cleaner using a mop. The appellant further stated that when he looked at the pool after the incident he saw no marks in it to indicate that any other shoppers had earlier stepped into the pool or taken their trolleys through it.
The evidence of the appellant’s companion was of more or less the same ilk. The store was busy and there were lots of people around (although his evidence about these people was somewhat vague). As they walked past the fruit and vegetable refrigerators the appellant slipped and fell. The substance on the floor on which the appellant slipped was an opaque liquid approximately, according to his ‘guess or estimate’, a metre square in dimension. He, too, could not give a closer description of the substance. He, the witness, did not pay sufficient attention to the pool to comment on whether or not there were marks indicating that other shoppers had encountered the pool.
Before the further evidence adduced is considered it may be recorded that the following was common cause at the trial. The floor space of the supermarket was 7366 square metres, and after making allowance for the space occupied by shelving, the remaining floor space was approximately 5400 square metres. Certain areas in the store were classified as high risk areas, ie areas where spillages on the floor were more likely to occur and the risk of a shopper slipping was increased. These areas included inter alia the aisle alongside the till (because of the traffic to be expected there), areas around the refrigerators and the fruit and vegetable section. These areas accordingly required closer vigilance.
Certain records maintained by Mr Clean and the respondent, respectively, were handed in as exhibits at the trial. The former were time sheets completed by workers of Mr Clean and the latter was what may be described as an occurrence book in which details of certain incidents that occurred in the store were recorded.
The last witness called on behalf of the appellant was a Mr Yates, employed by an industrial cleaning and hygiene company engaged in the cleaning regimes for shopping centres and malls. I do not, however, consider it necessary to refer to his evidence in detail. He eg mentioned that under average conditions a cleaner in a supermarket would be able to keep an area of about 750 square metres clean during a shift of 7½ hours (excluding ½ hour for lunch), and that according to the time sheets handed in there were five cleaners on duty on the morning shift ending at 2pm on the Sunday in question. (In fact, it appears that one cleaner signed off at 1pm and it may be therefore that there were only four cleaners on duty at the time when the appellant slipped). However, it is not simply a matter of cleaner hours worked or the cleaning workers’ availability. The evidence discloses that in practice certain cleaning work (eg polishing and buffing of floors) is undertaken in the period before the store opens and shoppers come in, whereafter the cleaners’ attention should be on maintenance of the condition of the floors and the detection of spillages. Secondly, as will be revealed below, the respondent did not content itself with reliance on the efforts of the cleaning staff employed by Mr Clean. However, the essential question still remains whether any causal negligence on the part of the respondent’s servants in relation to the appellant’s slip was proven.
The evidence adduced on behalf of the respondent disclosed the following:
(a) Mr Clean was contracted by the respondent to keep the store clean and safe.
(b) Mr Clean is a large specialist retail cleaning company which has been engaged in the industry for some 30 years.
(c) The site procedures adopted by Mr Clean were determined by Mr Clean and the appellant.
(d) These procedures included sweeping and polishing and buffing from 07h00 to 09h00 (opening time), whereafter the cleaners were to rotate and patrol for spillages and do spot mopping.
(e) Mr Clean and the respondent’s senior management met on a weekly basis to discuss the service provided by Mr Clean.
(f) Mr Clean’s management had instructions to undertake daily site inspections which entailed floor walks at various times during the day during which contact was made with the respondent’s management.
(g) The respondent’s management and employees plus security staff, as well as staff of merchandisers, were under instruction to look out for spillages and to report them to cleaners. For this purpose the respondent’s management were required regularly to do floor walks during trading hours to check up on cleaners.
(h) If a spillage were found by staff other than a cleaner it was to be secured until a cleaner arrived.
(i) Cleaners were to concentrate on high risk areas while doing spot mopping and to visit such areas often.
(j) The appellant’s management undertook monitoring of the actual cleaning and addressed any shortcomings with Mr Clean (or, at least, were expected to do so – an aspect to which I revert below).
Assessment
It was contended on behalf of the respondent that causal negligence on the part of either the respondent or Mr Clean had not been established in that:
the steps taken by the respondent to avoid the risk to the appellant were reasonable, specifically the regime which the respondent had set in place, involving not only the employees of Mr Clean, but the employees of the respondent itself as well and in addition the contribution of security staff;
the spillage in question could not have been on the floor for an ‘unreasonable’ period of time in the light thereof that:
the spillage was of small dimensions;
numerous persons had moved in the area in the vicinity of where the spillage was yet the appellant had seen no signs that such persons had stepped into the spillage;
the spillage was cleaned up ‘within minutes’ after the appellant fell’;
there were numerous members of the respondent’s staff, that of Mr Clean and of security on the floor at the time.
alternatively, negligence in respect of the incident was to be ascribed solely to Mr Clean.
I will deal with the second aspect first. I am unpersuaded that the facts relied upon reliably found the inference that the spillage was not on the floor for an unreasonable, or material, period of time. To refer merely to the fact that there were a number of staff, of the respondent, Mr Clean and security, on duty at the time would beg the question whether they performed their duties properly. As to the observations the appellant said he made of the appearance of the pool of spillage sight must not be lost of the fact that, on his evidence, he was in cognizable pain at the time and it would hardly have been present to his mind to have looked specifically for signs in the spillage indicating that other persons might have tramped in it before him. Thirdly, the evidence of how many people in fact were moving about in the store was of an uncertain nature and certainly insufficient to found an inference that had the spillage been there for a material period someone else would have stepped in it. One might ask what steps would have been taken had that in fact occurred.
At first blush the regime that the respondent had in place for keeping its floors clean and safe for its customers had much to commend itself: provided that the regime was properly implemented. In my judgment, the latter question falls to be answered against the respondent and therein lies its negligence causally related to the incident, whatever negligence is also to be ascribed to Mr Clean. The reasons for that conclusion are as follows:
Firstly, the place where the spillage occurred and where the appellant slipped was, on a three-fold basis, a high risk area: it was part of the aisle next to the tills where a high passage of pedestrian traffic was to be expected, and it was adjacent to both refrigerators and the fruit and vegetable section, where spillage was likely to occur. While it is not suggested that it was negligent of the respondent not to have someone specifically stationed in the area in question, the focus and concentration of the cleaners and the other persons who should have been on the lookout should have been on such areas. Yet, contrary to what counsel sought to imply with his submission that the spillage was cleaned up ‘within minutes’ of the incident, it took what I would stamp as the inordinately long period of seven to ten minutes for a cleaner to come to the scene, notwithstanding that a till operator was immediately made aware of the incident and the danger. Nor, despite the fact that a person had been injured in the incident, did the manager of the store put in an appearance at the scene before 10 minutes had elapsed. These features speak volumes not only of the inadequacy of the lines of communication between staff members and cleaners or of the implementation of the lines of communication that there were, but also, and more importantly, of the inadequacy of the patrol regime that was placed in operation or of the implementation thereof.
At the trial counsel canvassed with Yates the entries made in the occurrence book and sought to extract a concession from Yates that having regard to the amount of traffic that passed through the respondent’s supermarket over a period of time and the number of incidents that had occurred during that period, as recorded in the occurrence book, the inference was justified that the cleaning and safety regime implemented by the respondent in the store represented reasonable steps to avoid the risk of danger to shoppers. In my judgment, there are three short answers to this approach.
It was not for Yates to answer the question whether the respondent had taken reasonable steps to avert danger to shoppers frequenting its premises. That value judgment was one to be made by the trial court, and, on appeal, by this court.
The occurrence book reflects:
(a) that over the period 18 September 2004 to 3 August 2007 (ie just less than three years) there were some 21 incidents of shoppers slipping on some or other spillage on the floor of the respondent’s supermarket;
(b) that during the period of one year ending on 20 November 2005 (the day of the incident in casu) there were 11 such incidents.
In my judgment, it matters not what the volume of shoppers was that passed through the respondent’s store during the periods referred to. The figures set out in the preceding paragraph reveal that slipping incidents were a frequent occurrence in the respondent’s store. That frequency was such that it speaks of a cleaning and safety regime that was demonstrably deficient, and the respondent was obviously aware thereof. There is no merit in counsel’s counter that only if a particular incident was due to negligence on the part of the respondent (which he pointed out had not been shown) could it contribute to an adverse inference being drawn against the respondent.
What exacerbates the situation is that Mr Ferreira, the divisional financial manager for the Eastern Cape division of the respondent, testified that although the respondent from time to time took up with Mr Clean its overall performance of its obligations, individual incidents such as those recorded in the occurrence book were not brought to the attention of Mr Clean. One would have thought that such incidents would immediately have been taken up with Mr Clean, the more so when the frequency thereof was that reflected in the occurrence book, and Mr Clean would have been instructed to upgrade its performance and take more effective measures against the recurrence of such incidents, and further that the respondent itself would have monitored that its instruction was in fact been carried out. The omission on the part of the respondent to do so speaks volumes of its negligence on the score of taking reasonable steps against the risk of shoppers being injured as a result of slipping on a spillage on the floors of its supermarket.
I accordingly conclude that the magistrate erred in finding that the appellant had not discharged the onus of establishing that his slipping on the floor of the respondent’s store was the result of negligence on the part of the respondent.
Order
(1) The appeal is upheld with costs.
(2) The order of the magistrate is set aside and for it is substituted the following:
‘(1) It is declared that the defendant is liable to compensate the plaintiff for such damage as he may prove he suffered consequent upon the injuries sustained by him when he slipped on the floor of the respondent’s supermarket on 20 November 2005.
The costs relating to the issue referred to in (1) will be paid by the defendant, such costs to include:
the qualifying fees, if any, of Mr Yates;
the costs of counsel up to a maximum of three times the amount allowed in the applicable tariff;
interest thereon from the date of allocatur to the date of payment.
The matter is postponed sine die.’
_____________
F KROON
Judge of the High Court
PLASKET J
I agree
_____________
C M PLASKET
Judge of the High Court
Appearances:
For Appellant: Adv D de la Harpe instructed by Netteltons Attorneys, Grahamstown.
For Respondent: Adv J J Nepgen instructed by Wheeldon Rushmere & Cole Attorneys, Grahamstown
1 2004 (6) SA 211 (E) at 220D – 221B and the other authorities there cited.
2 2000(4) SA 735 (W).
3 1966 (2) SA 428 (A) at 430 E-H.
4 2009 [3] All SA 487 (SCA) para [7] at 489e.
5 Note 1 above, at 218I – 219B
6 Colonial Mutual Life Assurance Ltd v MacDonald 1931 AD 412 at 431-2; Dukes v Marthinusen 1937 AD 12 at 17; Langley Fox Building Partnership (Pty) Ltd v De Valence 1991 (1) SA 1 (AD) at 8A et seq; Chartaprops 16 (Pty) Ltd & Another v Silberman [2008] ZASCA 115; 2009 (1) SA 265 (SA) paras [28] and [42].
7 Ibid, at 284E-285A. In this case the plaintiff slipped on a slippery substance in one of the passageways of a shopping mall and in her claim for damages she cited the mall owner and the independent contractor engaged by it to keep the passageways clean and safe.
8 Ibid, at 285E – 286C.