Monteoli v Woolworths (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Goldblatt J, Labe J, Willis J
• Judgment Date: 21 August 2000
• Citation: 2000 (4) SA 735 (W)
• Docket Number: A5042/99
• Hearing Date: 31 July 2000
• Counsel: D C Mpofu for the appellant. M M Antonie for the respondent.
• Court: Witwatersrand Local Division

Goldblatt J:

[1] The appellant, who was the plaintiff in the Court a quo, sued the respondent for damages sustained by her on 30 August 1997 when she slipped on a bean in the respondent's Sandton City store and fell and injured herself. She alleged that the B respondent failed in its duty to keep the floor of such store reasonably safe for the public using the store.

[2] As a result of a separation of issues in terms of Rule 33(4) of the Uniform Rules of Court the Court a quo was called upon to decide whether or not the respondent's negligence was the cause of the appellant's falling and injuring herself. At the end C of the trial the Judge a quo granted absolution from the instance and it is against such order that the appellant now appeals.

[3] It was, correctly in my view, accepted by both parties that the law in respect of this type of accident was correctly set out D by Stegmann J in Probst v Pick 'n Pay Retailers (Pty) Ltd [1998] 2 B All SA 186 (W) where, after a very full analysis of both English and South African authority dealing with spillage on shop floors, the learned Judge, after referring to the judgment in the English Court of Appeal in Ward v Tesco Stores Ltd [1976] 1 All ER 219, said: E

'In short, all three members of the Court were of the view that the plaintiff had the onus of proving negligence on the part of the defendants; and that negligence on their part would be proved if the fact was that the slippery spillage had remained on the floor for a period longer than was reasonably necessary to discover it and clear it up, and not otherwise; and where the learned Lords of Justice differed F was over the question of whether the plaintiff's evidence that she had slipped and fallen in a spillage on the shop floor was sufficient, in the absence of rebutting evidence, to justify the prima facie inference that the slippery spillage had remained on the floor longer than was reasonably necessary to discover it and clear it up. The majority seem to have held that such an inference was justified; and Ormrod LJ held that it was not. The latter view is, perhaps, the more strictly logical. G

Of this result some may be tempted to repeat the adage that hard cases make bad law. In my judgment, however, the case should rather be seen to illustrate a more positive, and considerably more important, adage, to the effect that the genius of the common law is not logic so much as experience. There is a sound reason of legal policy why the majority view should be followed:

it is that in such a case the plaintiff generally cannot know either how long the slippery spillage H had been on the floor before it caused his fall, or how long was reasonably necessary, in all of the relevant circumstances (which must usually be known to the defendant), to discover the spillage and clear it up. When the plaintiff has testified to the circumstances in which he fell, and the apparent cause of the fall, and has shown that he was taking proper care for his own safety, he has ordinarily done as much as it is possible to do to prove that the cause of the fall was I negligence on the part of the defendant who, as a matter of law, has the duty to take reasonable steps to keep his premises reasonably safe at all times when the members of the public may be using them (cf Alberts v Engelbrecht (supra)). It is therefore justifiable in such a situation to invoke the method of reasoning known as res ipsa loquitur and, in the absence of an explanation from the defendant, to infer prima facie that a negligent failure on the part of the defendant to perform J

Goldblatt J

his duty must have been the cause of the fall. As explained in Arthur v A Bezuidenhout and Mieny (supra), this does not involve any shifting of the burden of proof on to the defendant: however, it does involve identifying the stage of the trial at which the plaintiff has done enough to establish, with the assistance of reasoning on the lines of res ipsa loquitur, a prima facie case of negligence on the part of the defendant, so that unless the defendant meets the plaintiff's case with evidence which can serve, at least, to B invalidate the prima facie inference of negligence on his (the defendant's) part, and so to neutralise the plaintiff's case, judgment must be entered for the plaintiff against the defendant. In this situation the defendant does not have to go so far as to establish on a balance of probabilities that the accident occurred without negligence on his part: it is enough that the defendant should produce evidence which leads to the inference that the accident which caused harm to the plaintiff was just as consistent with the absence of any C negligent act or omission on the part of the defendant as with negligence on his part. The plaintiff will then have failed to discharge his onus, and absolution from the instance will have to be ordered.'

[4] Thus the only issue in the trial was whether or not the respondent had produced sufficient evidence to displace the inference that the only cause of the accident was its negligent act of D omission. In this regard the respondent called two witnesses, namely Mr Venter and Mr James.

[5] Mr Venter, who was the managing member of Control Specialised Cleaning CC (Specialised Cleaning), gave evidence that Specialised Cleaning was contracted by the respondent to clean all its stores nationally, including the Sandton City store. He gave E evidence that he had been in the cleaning business for 14 years and he was, in my view, an expert in regard to what cleaning system was required to ensure that the floor of the shop was kept in a condition that was reasonably safe for shoppers. In regard to the cleaning system in place at the time of the accident he gave the following evidence. F

[6] The tiles used in the Sandton City store were semi-glazed and were cleaned with a neutral detergent and degreaser and no polish or sealants were applied to them. The store was cleaned in two distinct phases on a nightly and daily basis. During the nightly cleaning the store would be swept, the floor scrubbed with detergents using automatic scrubbing machines and the walls cleaned. In respect of the G cleaning during the day Specialised Cleaning employed two spillage cleaners on a seven-day basis during trading hours. Of these two cleaners the one worked full-time in the food market and the area surrounding the tills and the other spent 70% of her time in the food smarket and till area and 30% in the balance of the store. H

[7] The primary function of the spillage cleaners in the food market was to constantly roam throughout that area to detect and clean spillages, remove obstacles lying on the floor and to maintain the general tidiness of the store. For this purpose they were armed with a multi-purpose trolley on wheels which had a double bucket mopping unit I on it, together with a dustbin bag and a floor mop. In addition the spillage cleaners were obliged to follow instructions given to them by the management and staff of the respondent relating to spillage cleaning in the store. The reason why one of the cleaners spent all her time in the food market and the other cleaner 70% of her time there is that it was the most common area J

Goldblatt J

where spillages would occur. In the event of an emergency Specialised Cleaning would supplement the number A of spillage cleaners with trolley collectors who were similarly employed by them. Thus Specialised Cleaning was applying 90% of its time to 10% of the store. The spillage cleaners would cover all areas in the food market within a period of two to four minutes and would in addition have the assistance of the respondent's staff in detecting B spillages. The aforesaid staff were trained and conditioned to keep the store clean and safe and the respondent had what is known as a 'back to basics, tidy as you go' policy.

[8] On Saturdays the spillage cleaners would take lunch after 14:00 as the busiest period on a Saturday is between 10:00 and 17:00. In the respondent's stores, month end Saturday is very much the same C as any other Saturday, unlike, for example, Pick 'n Pay. The respondent does not work on a Saturday month-end philosophy as it is a day-to-day store. Mr Venter stated that if any one spillage cleaner was absent from work she would be replaced that day within...