Lindsay v Checkers Supermarket

• Jurisdiction: South Africa
• Judge: Van Der Reyden J
• Judgment Date: 28 November 2008
• Citation: 2008 (4) SA 634 (N)
• Docket Number: 757/06
• Counsel: MG Chetty for the plaintiff. AH de Beer for the defendant.
• Court: Natal Provincial Division

Van der Reyden J: B

The plaintiff claims damages from the defendant in the sum of R465 000, 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 C 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 D 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 E 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 F 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 an oily substance on the floor in the fruit and vegetable section which G caused her to lose her balance and fall.

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 H the area covered by the oil was plus-minus 40 by 48 cm.

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 I for negligence as follows (at 430E - G):

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 J

Van der Reyden J

(ii)

A 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 B 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 cases.

C Stegmann 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 keeper of a supermarket to take reasonable steps is not so onerous as to require that every spillage must be discovered and D cleaned up as soon as it occurs. Nevertheless, it does require a system which will ensure that spillages are not...