Shopping malls generally thrive with increased number of foot traffic which arguably is the heartbeat of their sustenance. Having said that, is there a higher duty on mall owners to ensure the safety of their patrons or the public against injuries sustained inside the mall’s floor area during rainy weather. In a recent SCA decision of Cenprop Real Estate (Pty) Ltd and Another v Holtzhauzen the court had to determine whether this duty is appropriate.

Pertinent Facts

On a rainy morning of Saturday, 1 June 2013, a 31 year old woman, and the respondent in the above matter, went to the Goodwood Mall (“the mall”) to withdraw money from an ATM.  On her way to the ATM she slipped and fell on the tiled floor inside the mall and suffered a fracture to her elbow.  As a result, she instituted a claim in the Western Cape Division of the High Court (Cape Town) for damages arising out of her injury.  Her claim was against the management company in charge of the mall and its owner.

The first appellant, Cenprop Real Estate (Pty) Ltd (“Cenprop”) managed the mall on behalf of the second appellant and the owner of the mall at the time, Naheel Investments (Pty) Ltd (“Naheel”).  Cenprop was engaged to manage the mall in terms of the management agreement concluded with Naheel.  In terms of the management agreement, Cenprop was to maintain the buildings and grounds in good condition however taking cognisance of cash flow pressures.  The trial court dismissed the respondent’s claim for damages.

Disgruntled with the dismissal of her claim, the respondent appealed to the full bench and was successful.  The matter thus came to the SCA at the instance of Naheel and Cenprop.

Pleadings

In terse terms, the respondent pleaded that the appellants were negligent in that:-

1. 1. the appellants knew that the surface was slippery when it became wet and posed a danger to members of the public;
2. 2. the appellants failed to ensure that the surface did not become slippery; and
3. 3. they allowed the floor to remain slippery despite knowing that members of the public used the area when entering and exiting the mall. 

In turn, the appellants denied negligence and/or causation and blamed the respondent for having failed to keep a proper lookout and taking reasonable care.

Moreover, Naheel pleaded that they had employed Cenprop as a competent independent contractor who specialised in property management in order to manage, physically inspect the premises on a regular basis and further to assist in maintenance including the surface area of the floors which Cenprop did.

The appellants further pleaded that Cenprop had appointed a professional cleaning company to, amongst other things, spot clean daily any spillages in walkways with warning signage. Further, they had appointed a professional security service provider to call the cleaning staff (if none were available) for spillage and litter in corridors.

In appointing these independent contractors, the appellants pleaded that they had taken adequate steps to ensure the safety of members of the public and to prevent the respondent, in particular, from slipping and falling as alleged. This defence, it is worth mentioning, was formed by the SCA’s decisions articulated in the matter of Chartaprops 16 (Pty) Ltd and another v Silberman (“Chartaprops”).

Lastly, the owners of the mall pleaded that they were excused from liability as they had placed signage at the entrance and/or exit of the mall to the effect that patrons entered at their own risk and the mall’s liability was excluded.

Relevant aspects of the evidence led at trial

Although it was common cause (agreed) between the parties that the disclaimer notice had been placed at the entrance of the mall, there was a dispute as to its visibility to patrons.

The respondent testified that she was wearing rubber-soled boots as a result of the rain. Given that she was at the time holding an 11 month old baby, she proceeded carefully along the corridor.  Despite her best efforts at being circumspect, she fell after walking about 20 paces (14 metres).

What emanated from the expert evidence led by the parties’ respective experts at the trial was that the tiles were slippery and posed a danger to the public when wet.  Further, the appellants’ expert in cross-examination conceded that it was possible for water to be walked in by other patrons depending on the quantities.

The respondent’s expert in particular testified that it would be possible for “rainwater from outside to be carried into the mall by those walking into the mall as the mat that was placed at the entrance door was not sufficiently wide to prevent water from being transported into the mall from pedestrians’ shoes”.

It would further become apparent from the photos of the evidence tendered that the disclaimer notices were hidden behind merchandise displayed by a fellow tenant hardware store at the mall. 

Issues on appeal

For the SCA there were 3 issues for determination in the appeal namely:-

1. 4. whether the respondent was negligent;
2. 5. whether the appellants had discharged their duty of care (in ensuring that the premises were safe) by the employment of independent contractors (the Chartaprops defence); and
3. 6. that a disclaimer notice on display indemnified the owners of the mall from liability for the respondent’s injuries.

In grappling with the issues enumerated above, the court referred to the well documented test of negligence which is as follows:-

1. 7. whether a diligens paterfamilias (i.e. reasonable man) in the position of the appellants:-
2. 1. 1. would “foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and
3. 1. 2. would take reasonable steps to guard against such appearance; and lastly
4. 1. 3. the defendant failed to take such steps.”

It was argued on behalf of the appellants that there was no negligence on their part in that the respondent having encountered a wet surface took the risk of walking into a mall, holding a child in hand.  It was further argued by the appellants that on the day of the incident, the respondent was aware that the floor was wet and could therefore be slippery.  Moreover, she even saw the “wet floor” warning signs at the entrance of the mall and walked 20 paces on the same wet floor before she fell.  The appellants thus argued that it was rather the respondent’s clumsiness and inattentiveness that led to her fall.

On the contrary, the respondent contended that there was no negligence on her part that caused the fall.  Instead her fall was caused by the wet floor in the mall which resulted from the rainwater brought in by the pedestrian shoppers who were soaked from the rain.  She argued as further advanced on her behalf that despite having treaded carefully and having worn rubber-soled boots, she still fell and was injured as a result.

Considerations of the facts by the SCA and Ruling

In the court’s view, the respondent’s evidence that on the morning of the incident the floor she slipped on was wet as a consequence of the rain remained unchallenged. That she treaded carefully and despite her best efforts still fell as a result of the wet tiles which posed a danger to her was unimpeachable.  There was thus in those circumstances no basis to find that the respondent was in any way negligent.

The SCA drew a distinction between this matter and the Chartaprops matter in the very same court.  The court stated that in Chartaprops the mall owner did not merely content itself with contracting a cleaning company to perform the cleaning services in the mall.  It did more.  A centre manager consulted with the cleaning supervisor each morning and personally inspected the floors of the shopping mall regularly to ensure that they had been properly cleaned.  Most importantly, with any spillage or litter observed, the centre manager ensured its immediate removal. In distinguishing this matter from Chartaprops, the court referred to the below passage in the judgment of Scott JA in City Council v De Jager–

“Whether in any particular case the steps actually taken are to be regarded as reasonable or not depends upon a consideration of all the facts and circumstances of the case.  It follows that merely because harm which was foreseeable did eventuate does not mean that the steps taken were necessarily unreasonable.  Ultimately the enquiry involves a value judgment.”

The SCA rejected the appellants’ argument that they were not liable to the respondent in that they had employed a cleaning company as an independent contractor which was responsible for ensuring that the floors of the mall were clean, dry and safe.  The court said it was clear from the joint minute in the trial proceedings that it was agreed that the tiles used in the mall were considered slippery underfoot when wet.  That being so, reasonable measures had to be taken to guard against members of the public slipping.  Merely hiring a cleaning company could not be seen as all that a reasonable person in the circumstances would do to discharge their duty towards members of the public.  In the court’s view, a reasonable person would ensure that given the potential danger posed by wet tiles in rainy conditions, adequate measures would be put in place.

Most importantly, where ensuring that the premises were safe in those conditions was the duty of the contractor, that ought to have been clearly set out in the scope of duties of the contractor.  In support of this reasoning, the court found that it is because rainy conditions are reasonably foreseeable and are not unexpected as cases of spillages that arise abruptly.  The court was scathing with regards to the management agreement concluded with the independent contractor as the scope of the duties was lacking in many respects.

For instance, it was not clearly set out in the management agreement as to what the management company’s duties would be and what was expected of the slippery nature of the tiles and constant carrying-in of water drops or wetness into the mall by customers during rainy weather.  This the court said was not explained.  In the court’s view, this would be different if these conditions were sudden and in which case different tests would be applied as to the reasonable steps to be taken.

There was no detail in the scope of work given to the cleaning company as to the extra attention which would be required to keep the floors dry during rainy conditions.  Further, rainy conditions on that day made it reasonably foreseeable that possible danger and harm would occur thus the appellants as reasonable persons in those circumstances should have foreseen the possible danger that could be caused by trafficking-in of rainwater by the shoppers and should have taken active reasonable steps to guard against this possible danger. 

With regards to the issue of the make of the tiles, the court found that this was a case which would be categorised as one where the owner and manager would be personally at fault and as a result the Chartaprops defence would not come to the appellants’ aid.

Disclaimer defence

The court ruled that the disclaimer notices hidden or obstructed by the merchandise displayed by a tenant hardware store could not have been easily visible to shoppers, let alone the respondent.  Moreover, even though the disclaimer notices had been stuck to the wall at the entrances of the mall, the appellants did not take all necessary steps to ensure that the disclaimer board placed inside the mall was clearly discernible to the shoppers. Further nothing was done by both Naheel and Cenprop to remove the objects obstructing the notice and as a result the disclaimer defence did not bear scrutiny.

The SCA thus ruled in favour of the respondent and found that the owners of the mall were personally at fault by failing to take reasonable steps to prevent the harm that was reasonably foreseeable.  Further, the mere employment of a cleaning company did not come to their or the management agent’s aid.  More had to be done.

Conclusion

This judgment certainly elevates the threshold required of shopping mall owners and their management agents in ensuring the safety of their patrons. It would appear that where shopping mall owners seek to exclude liability (against injuries of the nature dealt with in this matter) through the use of disclaimer notices, these had to be clearly discernible to their patrons. Of course, all cases must be assessed on their own merit and relevant to the context as there are no hard and fast rules in this regard. 

Notwithstanding, it would augur well for shopping mall owners (in particular during the rainy and often busy season) to use their best endeavours to mitigate their risk by taking all reasonable steps to curb their exposure. More importantly and on the strength of this case, setting out in sufficient detail the role of management agents and other independent contractors in order to mitigate their risk against their patrons is of paramount importance.