King v Arbour Town (Pty) Ltd
| Jurisdiction | South Africa |
| Judge | Olsen J |
| Judgment Date | 13 June 2019 |
| Docket Number | 9117/2015 |
| Court | KwaZulu-Natal Division, Durban |
Olsen J:
The plaintiff in this matter sues in her representative capacity as the mother of her minor daughter who was born on 7 May 2007. The particulars of claim delivered on her behalf alleged that on 30 December 2010 the plaintiff's daughter slipped on a pool of water on the tiled floor of a toilet facility in the Galleria Shopping Centre, Amanzimtoti, and that a "head injury with sequelae" resulted, for which she must be compensated.
The first defendant is the owner of the shopping centre. The second defendant is a cleaning company contracted to provide cleaning services at the centre including in and around the ablution facility within which the accident occurred. The particulars of claim advanced the case that one or the other of the defendants was, or both of them were, negligent in relation to the event because they failed to ensure that the floors of the facility were at all
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times dry and did not constitute a slipping hazard; because they failed to warn members of the public of the presence of water on the floor, and/or cordon or close off the relevant area until the floor became dry; because there were inadequate inspections of the area to ensure that the users of the facility were not placed in danger; and because employees of one or the other of the defendants who were present on the day did not ensure that the floor was dry and not a slipping hazard.
An order for the separation of issues was made. This judgment concerns the issues in the case other than the nature and extent of injuries suffered by the child, and the quantum of damages, if any, due in respect thereof.
I will refer to the plaintiff's daughter in this judgment using that term, or as "the child".
On the day in question the plaintiff was at the shopping centre with her daughter, and in the company of her daughter's aunt, a Ms August. The child wanted to go to the toilet. All three of them went to the facility. The plaintiff took her daughter into one stall and Ms August went into another. The latter emerged first and went across to a hand basin to wash her hands. Whilst she was busy there the plaintiff and her daughter emerged from the stall they had occupied with the child moving towards the hand basins about two paces ahead of her mother. She then fell forward and struck her head against the tiled edge of a protruding corner of the wall adjacent to the basin at which Ms August was busy. This much of the events of that day proved uncontentious during the trial.
The essential features of the layout of the ablution facility were depicted in a series of photographs handed in by consent. They show the position of electric air dryers provided for the use of patrons. As is usual with these electrical devices, they were placed at a distance from the wet area (i.e. the line of hand basins). In this case each of them was on a wall behind the hand basins
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so that the user would have to turn away from the hand basins with wet hands to approach the dryer. The proposition that this layout would or might cause drops or droplets of water to fall to the floor between the hand basins and the dryers was not questioned by any of the witnesses.
The first question to be considered is the mechanism of the child's fall. According to the plaintiff she did not see whether the floor was wet or dry when she was inside the ablution facility. She accepted the proposition that had there been a pool of water on the floor she would have seen it. She said that her daughter was at the time wearing shoes which had a non-slip sole. Although her evidence was not perfectly clear on this issue the impression I gained was that the sole of the shoe had a rippled texture.
Ms August confirmed in evidence that she did not see any pool of water. What she saw, she said, were "droplets" on the floor but she made it clear that the floor was not "soaking wet". She did not see these droplets until the incident occurred. As she put it she noticed them "as the reason why [the child] fell". At the end of her evidence it was not clear to me exactly what Ms August was saying about the extent of distribution of droplets of the floor. She had mentioned in evidence that at the time that they entered a cleaner was not present in the ablution facility, but that one entered the facility as soon as the fall had occurred, attracted presumably by the crying out of the plaintiff and perhaps also by the crying of the child. In response to a question from the court she stated that she was not saying that there were so many "droplets" on the floor that you could say that the cleaner had not done her job of drying the floor. That observation, as well as Ms August's choice of the word "droplets" to describe what I think must have been spots of water on the floor, do not in my view support the plaintiff's case that the child slipped on water.
The child was only three and a half years of age on the day in question. It is well known that small children sometimes fall without that necessarily being caused by any obstacle or a slippery surface. Small children do not keep their footing as well as adults for want of fully developed upper body control. Although the plaintiff said in evidence that the child "slipped" she was
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unable to give a description of the mechanism of the fall which persuaded me that it was more probable than not that the child had slipped on a slippery surface. Ms August had her back to the child at the time of the fall. She claimed to have seen the child slipping in the mirror placed above the wash hand basin at which Ms August was busy. Whilst there was no evidence before me that anyone had tested this proposition, it strikes me as unlikely, having regard to the photographs, that Ms August would have been...
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