Article by Anye Jansen van Rensburg of Schoeman Tshaka Attorneys
Personal injury claims by members of the public against property and shop owners have become more frequent. Probst v Pick n Pay Retailers[1] is regarded as one the founding cases when it comes to the duty of store owners towards members of the public. The court held the following: “As a matter of law, the defendants 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 focused on goods displayed on the shelves, or on their trolleys, and not looking at the floor to ensure that the every step they took was safe.”
In most instances the property or store owner will appoint an independent cleaning company to clean the premises. By appointing an independent contractor the owner “discharges” itself of the duty as set out in the Probs-case. Chartaprops v M Silberman[2] has finally settled the question whether an employer of an independent contractor is liable for the negligent acts / omission of the independent contractor. The court in effect ruled that where the owner has “discharged” itself of its duty of keeping the floor clean, safe and free from any hazards by appointing an independent contractor, the owner is not entitle to “pass the parcel” in that when it notices a potential hazard or danger it can simply ignore the hazard and assume that the independent contractor will “take care” of the hazard. The normal delictual liability test will apply to the owner (i.e. employer of the independent contractor).
In the Probs-case the court furthermore held that the duty 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. It does however require a system which will ensure that spillages are not allowed to create potential hazards for any material length of time, that it should be discovered, and the floor be made safe with reasonable promptitude.
It was also held in Probst v Pick n Pay Retailers that in instances where a person slips on a slippery substance on a floor the maxim of res ipsa loquitur (which is a prima facie case of negligence on the part of the defendant, and unless the defendant meets the plaintiff’s case with evidence which can at least invalidate the prima facie inference of negligence on the defendant’s part and so neutralise the plaintiff’s case, judgment must be entered for the plaintiff against the defendant) comes into operation and there is an evidentiary burden on the defendant to adduce evidence that appropriate safety measures, such as a cleaning system that involves identifying and cleaning up spillages, was in operation.
In Monteoli v Woolworths[3] the court held that the Probst-case went too far with the res ipsa loquitur maxim. In the court’s view the maxim of res ipsa loquitur can only come into operation where an inference is at least suggested from the evidence produced by the plaintiff. The maxim places an evidentiary burden on the defendant to show steps were taken to comply with the standards to be expected. The onus nevertheless remains on the plaintiff.
In Checkers Supermarket v Lindsay[4] the court considered the doctrine of res ipsa loquitur irrelevant. According to the court the issue that called for determination in these kinds of matters, after considering the evidence led, was whether the defendant had a proper cleaning system in place to deal with spillages.
Whether the maxim does apply or not the independent cleaning company will in any event have to lead evidence to show that an adequate cleaning system was in place.
The following extracts are made from the relevant case law to provide an indication as to what the courts consider to be an adequate cleaning system:
1. In the Probst v Pick n Pay Retailers the court held that an adequate and reasonable cleaning system is a system where spillages are detected and cleaned with reasonable promptitude.
2. According to Probst-case negligence would be established if a spillage had remained on the floor for a period longer than was reasonably necessary to discover it and removed it.
3. The court further held that reasonable steps to be taken in these matters are not so onerous as to require that every spillage must be discovered and cleaned up as soon as it occurs, but is 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 with reasonable promptitude. Thus a reasonable cleaning system should be in place.
4. In the Monteoli-case the defendant lead credible evidence regarding the cleaning system it had in place. The court held that the system it had in place was designed to prevent this type of accident i.e. slipping accident. There was also no evidence that the cleaning system failed, therefore the defendant was held not to be liable.
5. The cleaning system in the Monteoli-case consisted of multiple cleaners in each section of the store. Each cleaner had a duty to constantly roam their specific section and clean the section. The store also had a back-up cleaning system. The back-up cleaning system consisted of coloured light situated on the ceiling of the store which alerted staff to spillages.
6. In Checkers Supermarket v Lindsay the court held that the supermarket did not have an adequate cleaning system to discover and remove dangerous spillages. The store covered 15000m2 with 22 aisles. The defendant was held negligent in that if did not have an adequate cleaning system to detect dangerous spillages with reasonable promptitude.
7. In Toplass v Shoprite Holdings[5] the cleaning of the store was sub-contracted to a cleaning company. The cleaning procedure performed by the cleaning company included sweeping and polishing before the store opened. Thereafter cleaners rotated and patrolled for spillages and did spot mopping. Weekly meetings were held to discuss the service provided by the cleaning company. The management of the cleaning company did daily site inspections which entailed floor walks at various times during the day. The management, employees of the store and security staff were all instructed to look out for spillages and to report them to the cleaners. If a spillage is found by a staff member, other than a cleaner, it was to be secured until a cleaner arrived. High risk areas were also identified and cleaners were to concentrate on these high risk areas.
8. The court held in the Toplass-case that even thought the store had an adequate cleaning system the system was not properly implemented. The evidence led indicated that the system was not properly implemented. The incident occurred in one of the high risk areas and it took the cleaner some time to come to the scene and clean the area after the incident occurred. There was also a lack of communication between the staff and the cleaners. An employee of the store was immediately made aware of the danger after the incident occurred, but did not communicate this to either the cleaner of the management of the cleaning company. Thus the system was in principle an adequate one, but in practice it was not.
From the above it is evident that the courts require an independent contractor to show that:
1. An adequate cleaning system was in place;
2. The extent of the cleaning system i.e. the cleaning plan and procedure;
3. The adequate cleaning system was implemented and properly executed;
4. There was proper communication between the employees of the cleaning company to ensure the prompt detection and removal of any spillage, thereby enabling proper implementation of the system;
5. The system was maintained at all times.
In conclusion in order for a store or property owner to avoid delictual liability the owner has to ensure that the independent contractor it has employed to clean the store or premises have complied with abovementioned requirements. The store owners and the independent cleaning company both have a reasonable duty towards member of the public to keep the premised clean and free from any hazard. The duty on each is different, but in essence it is important for the owner and the independent cleaner to work together to ensure that an adequate cleaning system is in place and furthermore to ensure that the system is maintained at all times.
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[1] 1998 2 All SA 186 (W).
[2] 2009 (1) SA 265 (SCA).
[3] 2000 (4) SA 735 (W).
[4] 2009 4 SA 459 (SCA).
[5] 2009 (EC).
