(EASTERN CIRCUIT LOCAL DIVISION, GEORGE)

REPORTABLE
CASE NO: 3373/2010

In the matter between

and

JUDGMENT DELIVERED ON 14 APRIL 2010

YEKISO J

[1] The plaintiff, Ida Elizabeth Fritz, is described in the particulars of claim as an adult entrepreneur, born on 3 November 1946 and resides at 23 Housewood Road, Heather Park, George, in the province of the Western Cape.
[2] The defendant is Sal-Vred Dealers CC 1995/021563/23, a close corporation duly incorporated and registered in terms of the provisions of the Close Corporations Act, 69 of 1984, and used to carry on business as such under the name and style of Super Spar Hartenbos, a grocery undertaking, with its principal place of business at the corner of Cape of Good Hope and Kompanje Streets, Hartenbos, in the province of the Western Cape. It, however, emerged in evidence during the course of trial that the defendant has since sold the business undertaking and no longer carries on business under that name at the physical address mentioned in the particulars of claim.

[3] The plaintiff's claim against the defendant is for recovery of delictual damages arising from an incident which occurred on 26 September 2007 when the plaintiff slipped and fell at the defendant's then supermarket at Hartenbos. It is common cause between the parties that plaintiff did indeed slip and fall at the defendant's business premises so that the issues which called for determination, once the pleadings were closed, were a question of the defendant's liability, the plaintiff's alleged contributory negligence and the quantum of plaintiff's damages.     In its plea the defendant raised several defences on which I shall elaborate later in this

judgment.

FACTUAL BACKGROUND
[5] The facts and the circumstances out of which plaintiff's claim arise may be briefly stated as follows:

[5.1.] Since on or about 2006 upto and including 26 September 2007 the plaintiff, according to her evidence, had been in the employ of her husband, Thomas Johan Fritz, a sales representative, who carries on business under the name and style Fruit Hall Prime Cut. The main activity of the business undertaking is to supply merchandise to several business outlets includingSuper Spar, Hartenbos. The operational area of the business undertaking spans from Riversdale up to Plettenberg Bay including other areas outside the Garden Route, such as Oudtshoorn. Since her employ by her husband, so the plaintiff stated in her evidence, she accompanied him in the course of the delivery of such supplies. At each business outlet where they delivered such supplies, her husband would effectively offload the supplies from the delivery vehicle and carry these into the receiving division or department of the business outlet concerned. The supplies would first be checked by a receiving clerk, verify if the items delivered reconcile with the quantity specified in the invoice, keep the original invoice and hand a copy to the person delivering such supplies. The process involved unpacking the goods from the container; have the quantity thereof verified; reconcile the quantity of the goods with the number specified in the delivery invoice; repack the goods in the container; and ultimately take the goods through to the shop floor of the business undertaking concerned. The plaintiff's husband would attend to the labour intensive part of the process, i.e., offloading and carrying the goods supplied whilst the plaintiff would attend to the paper work, the handing in of the invoices and retaining a copy thereof as proof of acknowledgement of receipt of the supplies so delivered.
[5.2.] Her monthly salary was in an amount of R2,500-00. Her position in her husband's undertaking, according to her evidence, was that of a packer or merchandiser, the latter being a term commonly referred to in evidence in the course of trial. From the year 2004 upto 2006 she was employed by Just Water, ostensibly an undertaking which supplied preserved bottled water, as a sales representative. However, the fact of her employment by her husband as a merchandiser, is in dispute. Mr Henko Stander, who was the manager at Super Spar, Hartenbos when the incident occurred, and who was called as one of the defendant's witnesses, disputes that the plaintiff was employed as a merchandiser. He makes this assertion because the plaintiff was never introduced at Super Spar, Hartenbos as the merchandiser. In this regard Mr Stander stated in his evidence that it was the defendant's policy that persons operating in the business outlet as merchandisers would fist have to be introduced to management by the sale representatives before recognition would be accorded to them as a merchandiser.

[5.3.] On the date the incident occurred, the plaintiff had accompanied her husband in the course of delivery of supplies to various business outlets including that of the defendant, Super Spar, Hartenbos. Entrance into the Super Spar, Hartenbos was required to be made through the back entrance leading to the defendant's delivery area situate at the back of the business outlet where the merchandise supplied would be delivered, checked and verified. Once the merchandise would have been checked and verified, her husband would then carry the merchandise into the shop floor area which is accessible through an entrance door leading from the delivery area, for packing onto the shelves in an area of the shop floor designated for such goods. It is in such designated area where the goods would be unpacked and placed on display shelves. Whilst her husband had gone through to the shop floor area, she remained behind finalising the paper work with the receiving clerk. Once the paper work had been completed, the plaintiff proceeded to the shop floor area and, in dong so, had to walk down a sloping surface (ramp) joining two different surface levels and from there she would have had to turn right to the entrance door leading to the shop floor area.

[5.4.] Whilst walking on the sloping surface (ramp) on her way to the shop floor area, the plaintiff slipped and fell on her bottom side and in the process suffered serious bodily injuries more fully described in various medical reports filed of record. After she had fallen, her husband was notified and called to the scene. Mr Stander also came to the scene, ostensibly before her husband had arrived on the scene. After she had been stabilised her husband assisted her through to the delivery vehicle and, ultimately, took her through to Bay View Hospital where she was admitted and subsequently received medical treatment. She states in her evidence that she had a pair of denim jeans on and a pair of cream/beige shoes made of synthetic leather and rubber soles. Once again, the type of shoes plaintiff had on is in dispute. Whilst the plaintiff claims to have had on shoes of the colour and texture just described, it is pleaded on behalf of the defendant that she had a pair of slip-ons on which were clearly and visibly smooth underneath. Whilst her husband assisted her into the delivery vehicle, he felt moisture at the bottom end of her pair of jeans ostensibly caused by a transparent and, ostensibly, slippery substance which could have been spilled on the sloping surface. She had in her possession a transparent bag in which there was a pair of scissors and a piece of cloth these, according to her evidence, being items and equipment she used to cut boxes open and to clean shelves in the course of placing the goods in the designated display shelves.

[7] Based on the facts briefly described in the preceding paragraphs the following facts appear to be common cause, at the very least, or not seriously disputed by either of the parties, and these are:

[7.1.] That on 26 September 2007 the plaintiff slipped and fell whilst walking on the ramp leading from the upper surface level to the lower surface level in the goods delivery area which, as has already been stated, is situate at the back of the defendant's business premises;

[7.2.] That the area where the plaintiff slipped and fell is on a ramp leading from the upper surface level and to the lower surface level of the store area;

[7.3.] That based on the evidence tendered at trial it appeared to be common cause that the portion of the premises where the plaintiff fell is a goods receiving area where the defendant's supplies are delivered and received.

[7.4.] That the persons having access to the defendant's delivery area where goods supplied are received, and also persons using the ramp are the defendant's employees, the representatives of the suppliers of goods and their merchandisers. The plaintiff alleges in her particulars of claim that the defendant owed persons having access to its delivery area and, in particular, all such persons using the ramp, a duty of care that such persons would not be exposed to any potential hazard arising from any act or omission caused by the defendant. It is the defendant's case that whatever duty of care it owed to persons entering its business premises, such duty of care is limited to the category of persons just described, i.e., the defendant's employees, the representatives of the suppliers of goods and their merchandisers.

THE BASIS OF PLAINTIFF'S CLAIM
[8] The plaintiff alleges in her particulars of claim that she slipped on a surface covered with an unknown, invisible and slippery substance; that the unknown, invisible and slippery substance was a spillage on the ramp surface in the delivery area of the defendant's business premises; that such spillage occurred within the course and scope of operational activity in the defendant's delivery area; that at the time the incident occurred the defendant owed members of the public and, in particular, the plaintiff, a duty of care to take reasonable steps to ensure that:

[8.1.] the premises, including the ramp in the delivery area, are safe for use by persons entering the business premises;

[8.2.] the premises, including the ramp in the delivery area, was free of spillage and substances which would pose a potential hazard to persons entering and moving about the business premises including the ramp in the delivery area;

[8.3.] the defendant has a system in place to make those in authority aware of the existence of a potential source of danger, both on the surface of the shop floor and the delivery area including the ramp, and to remove such potential source of danger or hazardous situation without delay.
[9] The plaintiff further alleges in her particulars of claim that the defendant failed in its duty of care in that it failed to ensure that its business premises and, in particular, the delivery area inclusive of the ramp, was safe for use by members of the public including plaintiff and, more specifically, the defendant failed to ensure: [9.1.] that the steps in the delivery area were accessible for use;

[9.2.] that the steps in the delivery area were free of obstruction;

[9.3.] that the ramp did not pose danger to those persons using it by fitting rails along the wall adjacent the ramp;

[9.4.] that the ramp did not pose danger to those persons using it by covering it with anti-slippery devices and/or substances designed to ensure that the surface is not slippery.

[10] Except to admit that the incident complained of occurred in the delivery area at the back of the defendant's business premises, the defendant denies that the plaintiff fell in the category of persons it owed a duty of care; that if it is found that the defendant owed plaintiff a duty of care, the defendant denies that it negligently failed to discharge such duty of care; and that if it is found that the incident complained of was reasonably foreseeable, and the defendant had a duty to guard against it, the defendant denies that it failed to take reasonable steps to guard against the incident complained of occurring. In the alternative to the aforementioned defences, the defendant pleads that the plaintiff was partly culpable for the mishap which befell her, and that if it is found that the plaintiff was so culpable, that whatever damages she may have suffered as a result of the incident complained of, such damages ought to be reduced to the extent and the degree of her culpability in terms of the provisions of section 1(a) of the Apportionment of Damages Act, 34 of 1956. Based on the pleadings, therefore, it would appear that the first issue which calls for determination is whether the defendant owed plaintiff a duty of care.

DUTY OF CARE

[12] In paragraph 6 of her particulars of claim the plaintiff pleads that at the time the incident complained of occurred the defendant had a duty to members of the public and, in particular the plaintiff, to ensure that its business premises, including the sloping surface in the delivery area where the plaintiff slipped and fell, was safe, free of spillage and that the defendant had a system in place to ensure that any spillage which might occur, be immediately and effectively brought to the attention of management in order that it be speedily and effectively removed. The plaintiff goes on to plead in paragraph 7 of her particulars of claim that the defendant failed to discharge its duty of care by failing to ensure that the sloping area where the incident occurred was free of hazardous material and safe for use by members of the public and, in particular, the plaintiff. Further, the plaintiff pleads in paragraph 7.2 and 7.3 of her particulars of claim that the defendant failed its duty of care by failing to ensure that a proper and effective system was in place to guard against any unknown, transparent and slippery substance spilling over the ramp, and that such substance is detected in order that it be speedily and effectively removed.

"As a matter of law, the defendant owed a duty to persons entering their shop at Southgate during trading hours, to take reasonable steps to ensure that, at all times during trading hours, the floor was kept in a condition that was reasonably safe for shoppers, bearing in mind that they would spend much of their time in the shop with their attention focussed on goods displayed on the shelves, or on their trolleys, and not looking at the floor to ensure that every step they took was safe."

The remarks by Stegman J were made in the context of a duty of care owed to persons entering and, walking on a shop floor area of a supermarket store. But the remarks by Stegman J are not limited to shop floors of shops and supermarkets but extend to all such areas of a business concern where members of the public have access.

[15] Whilst the defendant admits that it owed a duty of care in relation to persons entering its business premises such as sales representatives and merchandisers, the defendant denies that the plaintiff, in the instance of this matter, falls in the category of such persons for the simple reason that, according to the defendant, the plaintiff was not introduced to management as a merchandiser and that, therefore, the plaintiff was not a merchandiser to whom it owed a duty of care.
[16] There are conflicting versions as regards whether the plaintiff was a merchandiser or not and also as regards the type of shoes the plaintiff had on when the incident occurred. Whilst the plaintiff alleged in her pleadings and stated in her evidence at trial that she was employed by her husband as a merchandiser, the defendant, on the other hand, pleaded and tendered evidence in an attempt to show that when the plaintiff visited its business premises on the date the incident occurred, her presence at its business premises was not in her capacity as a merchandiser and therefore did not fall in the category of persons to whom it owed a duty of care. Furthermore, whilst the plaintiff stated in her evidence that she had on a pair of cream/beige shoes made of synthetic leather, it is, on the other hand, pleaded on behalf of the defendant and evidence was tendered at trial which was intended to show that plaintiff had a pair of slip-ons on which were clearly and visibly smooth underneath.

[18] Mr Stander conceded in his evidence under cross-examination that he could not dispute that the plaintiff visited the defendant's business premises on a weekly basis and that she had to use the ramp to access the shop floor area. The plaintiff stated further in her evidence that on the day the incident occurred, she had in her possession a pair of scissors and a piece of cloth with which to cut boxes open and to clean display shelves. These appear to be duties consistent with those of a merchandiser. She stated further in her evidence that at no single occasion, since her employ by her husband, was she prevented from having access to the defendant's business premises on the basis that she was not a merchandiser. She had been known at the store and had been visiting the store on a regular basis over the past 11 years. She was not aware that she had to introduce herself to those in authority as a merchandiser and was at no stage called upon to do so. She stated in her evidence that on the date the incident occurred, she was at the defendant's premises not as the defendant's employee but as a member of the public and in her capacity as a merchandiser.

[19] The evidence of Mr Stander, on the other hand, is that plaintiff is not a merchandiser for the simple reason that the plaintiff was not introduced to management as such. He stated in his evidence that it was the policy of the defendant that persons entering the defendant's premises as merchandisers had to be introduced to those in authority as such. It is not clear on the basis of the evidence tendered at trial how and in what shape or form was this policy implemented and communicated to the sales representatives and, in particular to the merchandisers. Mr Stander further stated in his evidence that for the whole period the plaintiff had been in her husband's employ, he had never seen plaintiff performing duties of a merchandiser.   This is not surprising as Mr Stander was in management and could therefore not have been in a position to have seen every merchandiser performing his or her duties in the defendant's premises more so that the plaintiff visited the defendant's supermarket once on a weekly basis.. A person ostensibly in charge of the admission register in the delivery area, who probably may have shed light as regards whether the plaintiff used to visit the supermarket as a merchandiser, was not called by the defendant to testify. Mr Stander had, however, seen the plaintiff, on a few occasions, sitting in her husband's delivery vehicle in the delivery area. This may well be so, especially when her husband would have been offloading and taking the supplies to the delivery area for the necessary check and verification.

"Where there are two stories mutually destructive, before the onus is discharged, the Court must be satisfied that the story of the litigant upon whom the onus rests is true and the other false. It is not enough to say that the story told by Clark is not satisfactory in every respect. It must be clear to the Court of first instance that the version of the litigant upon whom the onus rests is the true version and that in this case absolute reliance can be placed upon the story as told by A Gany."

[24] There is evidence to suggest that the ramp on which the plaintiff fell is the busiest surface used at the store, not only by the defendant's employees, but also by members of the public in the form of sales representatives and merchandisers. The defendant thus owed a duty of care, not only towards its employees but also to the members of the public in the form of sales representatives and merchandisers, to guard against any source of danger occurring on the ramp surface.

THE DEFENDANT'S NEGLIGENCE
[25] The plaintiff alleges in her particulars of claim that the defendant was negligent in one, more of all of the following respects, namely: [25.1.] that the steps in the delivery area were not accessible to her ostensibly in view of the fact that empty boxes were strewn all over the surface in the delivery area except on the floor on the upper level in the delivery area and ramp;
[25.2.] that the plaintiff was thus compelled to use the sloping surface on her way to the shop floor area;
[25.3.] that the sloping surface was dangerous to use under the circumstances;
[25.4.] that an unknown, hardly visible slippery substance was spilled on the sloping surface;
[25.5.] that the defendant did not have a system in place to ensure that any spillage which could pose a potential source of danger could be detected and brought to the attention of management; [25.6.] that because of the absence of a proper system in place, the defendant did not detect the spillage on the sloping surface and, ultimately, have it speedily removed;

"'n Okkupeerder van 'n perseel is onder 'n regsplig om redelike sorg te dra dat persone wat verwag kan word om op die perseel te kom nie beseer word as gevolg van 'n gevaarlike situasie wat op die perseel aanwesig is nie. ... Dit beteken natuurlik nie dat so n okkupeerder ook aanspreeklik is vir die gevolge van n gevaar situasie wat ontstaan het as gevolg van die onregmatige en onvoorsienbare optrede van n vreemdeling nie, tensy die okkupeerder daarvan bewus geword het en versuim het om die redelike stappe te neem om skade te verhoed."

"In my view it is inherently dangerous in a shop such as the one in question to have a floor which is on two levels. Although this has been described as a step, it seems to me that it cannot be compared with a flight of steps. It is proper to consider it as a floor on two levels and in my view it is in the nature of a trap. Consequently, there was a dangerous situation of which the defendant was aware."

"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 cleaned up as soon as it occurs. Nevertheless, it does require a system which will ensure that spillages are not allowed to create potential hazards for any material length of time, and that they will be discovered, and the floor made safe, within reasonable promptitude."

"I am satisfied, notwithstanding the plaintiff's inability to pinpoint the approximate time of the spillage in question, that the evidence led by the defendant does not provide support for the argument that it had an adequate cleaning system in place. Common sense and the application of legal principles dictate that the system in place on the day in question was inadequate to deal timeously with hazardous spillage."

[34] Now that I have found that plaintiff falls in the category of persons to whom the defendant owed a duty of care, the next question I have to determine is whether the defendant negligently failed to discharge that duty of care as against the plaintiff. It would appear that the defendant was well aware that the sloping surface where plaintiff fell posed a potential hazardous situation hence its practice of applying adhesive paint thereon at six-monthly intervals to prevent the sloping surface being slippery.    But there is also evidence tendered on behalf of the defendant that the kind of paint applied on the sloping surface starts peeling off within two weeks of its application; that the paint would gradually peel off for the remaining period until its re-application on the sloping surface once a period of six months shall have expired. There is further evidence tendered on behalf of the defendant that the sloping surface where plaintiff slipped and fell is the most used and busiest area in the defendant's delivery area. There is further evidence tendered on behalf of the defendant that prior to the occurrence of the incident a truck full of load delivered supplies of varying kinds in the defendant's delivery area and that it was the defendant's practice that such load, which appeared to emanate from the defendant's head office, had to be offloaded from the truck as quick as possible in order that, amongst other things, perishable goods be moved either to the cool room for storage or to the shop floor area for packing and in doing so, the same ramp where plaintiff slipped and fell had of necessity had to be used. Thus, it is probable that in the process of such busy, labour intensive activity, substances emanating from such products could have been spilled on the sloping surface causing same to be slippery. The question which ultimately has to be determined is whether the defendant had an adequate system in place to detect any potential hazard in the light of this labour intensive and busy activity.

[37] Based on the evidence I have just outlined, I have no hesitation to find that the plaintiff slipped and fell on the sloping surface as a result of some slippery and transparent substance spilled on the sloping surface shortly before plaintiff walked thereon; that such slippery and transparent substance was not visible to the naked eye; that the cleaning system the defendant had at the time was merely reactive, and not pro-active in the sense of detecting whatever spillages there could have been in order to guard against any potential harm that could be caused to the person of another; that the plaintiff slipped and fell on the sloping surface as a result of a transparent and slippery substance spilled on the sloping surface during the course of removal of the products delivered from the upper floor level to the lower floor level in the defendant's delivery area. In this regard, it is appropriate to reiterate the remarks of Van der Reiden J, in

[39] In its plea, the defendant relies on the following allegations in support of its contention that the plaintiff was negligent, namely, that the plaintiff walked on the sloping surface with footwear that was smooth underneath; that the plaintiff did not keep a proper lookout; and that plaintiff failed to remove the obstruction, namely, the empty boxes, that were strewn on the steps leading to the upper floor level. The last mentioned ground of negligence was not pursued in argument so that a determination on whether the plaintiff was indeed negligent will be made on the basis of whether the plaintiff kept a proper lookout and on an allegation that the plaintiff walked on a sloping surface with footwear that was smooth underneath. It appears that it is accepted between the parties that the defendant bears the onus to prove negligence on the part of plaintiff.

[40] With regards to the plaintiff's alleged failure to keep a proper lookout, it is contended on behalf of the defendant that in view of a clear visibility and absence of any form of obstruction on the sloping surface as depicted in photograph 2 in Exh "A", the tough, transparent substance on the sloping surface which may have been the cause of the plaintiff slipping and falling ought to have been clearly visible.   No evidence was led as to the nature

of the substance that may have been spilled on the sloping surface and its measure of visibility, so that any finding as regards the nature of such substance and the visibility thereof will be based on sheer speculation. The only evidence which was led at trial is that the plaintiff felt moisture on the bottom end of her pair of trousers which appeared to have been caused by an ostensibly slippery substance which may have been spilled on the sloping surface. In my view, the defendant has not established, on a preponderance of probability, that whatever substance that could have been spilled on the sloping surface was capable of any form of visibility with the naked eye so that this ground of alleged negligence on the part of plaintiff ought to fail.

[42] In any event, at the hearing of this matter, I had all the opportunity in the world to observe the way the parties tendered their evidence regarding the footwear plaintiff had on at the time the incident occurred; the manner they tendered their evidence and their demeanour. Based on this approach I am not persuaded that the version of the plaintiff together with that of her husband, namely, that on the day the incident occurred the plaintiff had on shoes similar to those produced at trial as Exh 1; and that the plaintiff always had a pair of shoes on similar to those produced at trial as Exh 1 whenever she visited the defendant's premises, is incorrect; nor am I persuaded that the plaintiff had on footwear similar to that produced at trial as Exh 2. It therefore follows that the defendant failed to show that the plaintiff was negligent in the sense of having had on footwear similar to that produced at trial as Exh 2 or any other form of negligence.

[43] In conclusion, I thus have no hesitation to find that the defendant was negligent in that it failed to discharge the duty of care it owed to plaintiff by ensuring that the steps leading to the upper level floor adjacent to the sloping area were accessible to plaintiff; failed to ensure that the sloping surface did not pose danger to those persons using it; failed to ensure that the steps leading to the upper floor level were free of obstruction; failed to apply effective anti-slippery devices and/or substances designed to ensure that the sloping surface would not be slippery, and that it had an effective system in place to detect any source of danger that could cause harm to the person of another.

[44] It therefore follows that the injuries the plaintiff sustained as a result of having slipped and fell on the sloping surface in the defendant's delivery area was as a consequence of negligence on the part of the defendant.

[45] In the result the following order is made:
[45.1.] It is hereby determined that the incident which occurred on 26 September 2007, when the plaintiff slipped and fell on the sloping surface (ramp) in the defendant's delivery area, was as a result of negligence on the part of the defendant and/or its employees;
[45.2.] That the defendant is liable to plaintiff in respect of damages sustained the quantum of which is yet to be proved.
[45.3.] The defendant is ordered to pay plaintiff's costs, on a party and party scale, duly taxed or as agreed.
N J YEKISO, J