It’s been more than eight years since the customer was injured after slipping on a hazardous spill in a store in Cape Town.
Pick n Pay Retailers has failed in a further attempt to appeal a high court judgment that found it liable for the personal injuries, medical and other costs of a customer who slipped and fell in its N1 City Mall store in Cape Town.
The Supreme Court of Appeal (SCA) on Monday dismissed with costs an application by Pick n Pay Retailers for reconsideration of a ruling by SCA judges Fikile Mokgohloa and Wendy Hughes dismissing with costs the company’s petition for leave to appeal the high court judgment.
Mokgohloa and Hughes had dismissed Pick n Pay’s petition for leave to appeal on the basis that the proposed appeal lacked reasonable prospects of success and no other compelling reason existed to justify the matter being entertained on appeal.
However, SCA Deputy President Dumisani Zondi on 30 April 2024 ordered that Pick n Pay’s application be referred for reconsideration and possible variation in terms of the Superior Courts Act.
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The injury
Maria Williams was shopping with her sister at the N1 City Mall Pick n Pay store in Goodwood on 13 November 2017.
As she was approaching the till point, Williams remembered that she had forgotten to collect an electric fly repellent – but slipped on some spillage and fell to the floor while proceeding at a brisk walking pace, but not running, to get the item.
She testified that she did not see any cleaning staff in the immediate vicinity of where she fell and the size of the spillage was about equal to an A3 piece of paper.
Williams disputed that the spillage was the size of a two-rand coin, as was asserted on behalf of Pick n Pay.
As a result of the fall, Williams sustained a soft tissue injury to her left hip and an injury to her left acromioclavicular joint.
Immediate assistance was provided to her by a customer services manager employed by Pick n Pay, who also arranged for her to be transported to a nearby hospital for medical treatment.
It was alleged that Pick n Pay undertook to bear Williams’s medical treatment costs but despite these assurances, Pick n Pay failed to honour its undertaking.
This prompted Williams to institute legal proceedings against Pick n Pay in the Western Cape High Court, where she sought payment of damages for past and future hospital, medical and related expenses, past and future loss of earnings, and general damages for pain and suffering.
Bluedot, a third-party service provider contracted to Pick n Pay under a cleaning service agreement between the parties, was cited as the second respondent.
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What the high court found
Judge Patrick Gamble ruled in the Western Cape High Court on 1 September 2023 that Pick n Pay had failed to discharge the evidentiary burden required to rebut the prima facie case of negligence established by Williams.
The court found that Pick n Pay had not provided sufficient evidence to negate the inference of negligence arising from the circumstances of Williams’s fall.
It further ruled the injuries sustained by Williams were directly attributable to the negligent conduct of Pick n Pay’s employees, acting within the course and scope of their employment.
Pick n Pay was found to be legally liable to pay Williams “100% of such damages as she may establish in due course arising out of the incident”.
Aggrieved by the high court’s findings, Pick n Pay sought leave to appeal the decision to the full court of the Western Cape High Court on the grounds that the court had misdirected itself.
The high court dismissed the application for leave to appeal on 31 October 2023 on the basis that Pick n Pay had failed to show there was a reasonable prospect of success on appeal or “there is some other compelling reason why the appeal should be heard”.
This resulted in Pick n Pay petitioning the SCA for leave to appeal on the same grounds as in the high court.
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How the Supreme Court of Appeal saw things
Handing down judgment on Monday, acting SCA Judge Daniel Dlodlo, with SCA Judge Xola Petse and acting SCA Judge Boissie Mbha concurring, said Pick n Pay concedes that it owed a general duty of care to all patrons entering its premises to ensure the store was reasonably safe for shopping activities but denies liability for the injuries sustained by Williams.
He said Pick n Pay claims the main cause of the incident was the sole negligence of Williams herself, who allegedly failed to maintain a proper lookout, neglected to take reasonable precautions to avoid the hazard, and thereby failed to prevent her own injury.
Dlodlo said Pick n Pay further claimed it discharged its duty of care to its customers by engaging the services of Bluedot, and in terms of the agreement, Bluedot undertook responsibility for the cleaning and maintenance of the store premises.
It also claimed that Bluedot assumed liability for any injuries arising from its failure to properly fulfil its contractual obligations.
He said Pick n Pay maintains that it acted reasonably in outsourcing these functions and cannot be held liable for any alleged negligence on the part of Bluedot.
Dlodlo said Pick n Pay also claimed the high court erred in both its interpretation and application of the relevant legal principles, and in its assessment of the facts underpinning the matter.
He said the evidence emerging from the record reveals that, on the day in question Pick n Pay – represented by one of its employees – was made aware of Williams’s injury not by its own staff, but by a field marketer employed by a third party.
“This fact is material in evaluating the adequacy of Pick n Pay’s internal safety protocols and its responsiveness to hazardous conditions on the premises as and when they arose,” he said.
Dlodlo said the absence of any Pick n Pay personnel in the immediate vicinity of the spillage at the time suggests the prescribed safety protocol was not adhered to.
He said it also indicates the spill had been present for a considerable amount of time, which supports the inference that the hazardous condition was not promptly addressed.
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“Such a failure to implement or enforce routine checks, particularly in a human high-traffic retail environment where spillages are reasonably foreseeable, constitutes a material breach of the duty of care owed to patrons,” he said.
“The prolonged presence of the spill, coupled with lapses in procedural oversight, amounts to conduct that falls short of the standard expected.
“Accordingly, Pick n Pay’s omission in this regard is indicative of negligence.”
Judge Dlodlo said no factual or evidentiary basis has been advanced to suggest that another court would reach a different outcome from that of the high court.
He said the record also reveals no extraordinary or unusual circumstances warranting intervention by the SCA.
Judge Dlodlo said Pick n Pay’s petition “amounts to a mere attempt to reargue the merits of its case which … lacks substantive merit”.
This article was republished from Moneyweb. Read the original here.