Suing for a Supermarket “Slip ‘n Trip” – What Must You Prove?

Suing for a Supermarket “Slip ‘n Trip” – What Must You Prove?

“The path is smooth that leadeth on to danger” (William Shakespeare)

Tripping over aisle blockages or slipping on floors made slick by spillages can happen in even the best-managed supermarkets, and injured shoppers regularly turn to our courts to claim damages from shopkeepers and building owners.

It’s no surprise therefore that this sort of claim has its own (informal) name – the “slip ‘n trip” case. A recent High Court judgment provides some clarity on what you will need to prove should you be one of the unfortunate shoppers who are injured in this way.

A shopper slips, and sues
  • A shopper slipped on an unidentified spillage, injuring herself and needing hospitalisation and further treatment for unspecified orthopaedic injuries.
  • Supermarket employees initially undertook to cover her medical expenses but later the supermarket denied liability.
  • It admitted that it had a “general duty of care to customers visiting its store to ensure that it afforded them a safe environment within in which to shop”, but claimed the shopper’s fall was “due to her sole negligence in that she failed to keep a proper lookout, failed to take reasonable steps to prevent her fall and failed to avoid injury to herself.” In the alternative it alleged contributory negligence on her part. It also sought to blame its cleaning service contractors and/or an independent merchandiser who had been working in the aisle in question.
  • The shopper took her claim for damages to the High Court, which confirmed that what you will have to prove is that the shop –
    • Should have foreseen the reasonable possibility of its conduct causing your injury and monetary loss; and
    • Should have taken reasonable steps to avoid that loss; and
    • Didn’t do so.
  • The Court held that, on the evidence presented, the shopper had proved that “she took proper care for her own safety on the morning in question. The fact that she may have moved down aisle 5 at more than a leisurely dawdle did not occasion her fall: she did not slip or trip because of haste or inattention but because she stepped in some spillage of unknown origin.” (i.e., you need to prove you weren’t negligent)
  • And even if the spillage was a small one (supposedly the size of a R2 coin in this case) “it really matters not what the extent thereof was as its mere presence on the supermarket floor presented a risk to any unassuming shopper, who would be expected to spend her morning looking at the merchandise on the shelves and not peering down at the floor ahead of her.” (i.e., keeping a proper lookout doesn’t necessarily mean peering down at the floor ahead of you all the time)
  • In principle, once a shopper 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 negligence on the part of the [supermarket] who, as a matter of law, has the duty to take reasonable steps to keep his premises reasonably safe at all times when members of the public may be using them.
  • The shopper in this case had done all that, raising a rebuttable presumption of negligence by the supermarket so that, in the absence of an explanation from it, it was inferred that a negligent failure on its part to perform its duty must have been the cause of the fall. In this case it provided no evidence of how long the spillage had been on the floor or how long it was reasonably necessary for it to discover the spillage and clean it up. (i.e., once you prove what happened and that you took proper care for your own safety, it’s for the supermarket to prove that it wasn’t negligent)
  • The shopper is entitled to whatever level of damages she can prove.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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How to Stop Someone Damaging Your Good Name on Social Media

How to Stop Someone Damaging Your Good Name on Social Media

“He that filches from me my good name robs me of that which not enriches him and makes me poor indeed.” (Shakespeare)

As our lives move increasingly online, more and more of us will be subjected to the distress and damage of online attacks. Whether they are aimed at hurting us personally or at harming our businesses, they can take a substantial toll both materially and psychologically.

What can you do if you (or your business) falls victim? The good news is that in appropriate cases our courts will come to your rescue robustly and with speed, as evidenced by a recent High Court decision.

Your legal protections

Before we discuss the facts and outcome of that case, let’s make a general note that as a victim of any defamation you have a choice of legal weapons available to you. A claim for damages can be highly effective but it is, as the Court here put it, a backward-looking remedy essentially suitable for redressing past defamation.

Where on the other hand you are being subjected to, or fear being subjected to, ongoing defamatory attacks, ask your lawyer about applying urgently for an interdict. As in the case we discuss below, it can provide powerful, quick and effective protection.

You could also try laying a criminal charge of crimen injuria (criminal impairment of another’s dignity) but perhaps don’t hold your breath on that one.


A property developer’s reputation vindicated, and an extortion attempt punished
  • A company undertaking a large property development employed a roofing contractor which, after a fall out, started publishing defamatory statements about the developer on a local WhatsApp group and Facebook.
  • Amongst other things the posts accused the developer of acting unlawfully for financial gain, creating a potentially life-threatening situation, dishonesty, not carrying out necessary remedial actions, defrauding the Municipality, exploiting elderly clients, selling uninspected and potentially dangerous homes, not following proper safety standards – the list goes on.
  • The Court found no truth at all in any of these allegations and rejected for lack of proof the roofing contractor’s defence of “truth and the public benefit”.
  • Particularly damningly perhaps, it held that the contractor had tried to extort payment of its outstanding invoices in return for its silence.
  • The Court accordingly interdicted the contractor from continuing with the defamatory posts (online or otherwise), directed it to publish a copy of the court order on the online channels in question, and ordered it to pay legal costs on the punitive attorney and client scale.

The end result, which is a vindication of the developer’s position and an expensive lesson in the law for the roofing contractor, will give much heart to other victims of this sort of harassment.

Bottom line for victims – don’t take social media defamation lying down!

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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“Bad Dog!” Why a Husky’s Owner Must Pay R100,000 Damages

“Bad Dog!” Why a Husky’s Owner Must Pay R100,000 Damages

“…in general, ownership of an animal should carry with it strict liability for any harm done by the animal.” (Extract from judgment below)

Owning a pet comes with both joys and responsibilities, and a recent High Court award of almost R100,000 in damages to the victim of a dog attack is yet another reminder of the potential dangers of animal ownership and the legal responsibilities that come with it.

A social invite goes horribly wrong
  • 17 years old at the time, a young woman was invited to a social gathering at a private house. As the gate was opened to let her in, two dogs came running out and the one (a large Siberian Husky) ran towards her and without warning launched itself towards her throat. She raised her arms to ward off the attack which resulted in both her forearms being bitten.
  • Rushed to hospital, she was operated on by a plastic surgeon and has been left (nine years on) with scarring, physical disability and pain requiring physiotherapy, as well as counselling for psychological trauma in the form of PTSD (post-traumatic stress disorder).
  • The dog’s owner suggested in court papers that when the dog jumped up to greet the victim, she had provoked it and acted negligently by retaliating, hitting it and pulling its hair. She was, he said, injured when the dog fended off her “unwarranted attack”. However, as the owner led no evidence to support this (the onus being on him to do so) the Court accepted that there was no provocation or negligence from the victim’s side.
  • On the basis of our law’s general legal principle that “…in general, ownership of an animal should carry with it strict liability for any harm done by the animal”, the Court ordered the dog’s owner to pay the victim a total of just under R100,000 in damages.
The danger for pet owners – liability without fault

To understand that outcome, we need to go back to an old Roman law remedy, the pauperian action (“actio de pauperie”).

Under that action, which is still very much part of our modern law, the victim does not need to prove that the animal’s owner was negligent in any way. If your dog (or any other domesticated animal) causes someone else harm you are held liable on a “no fault” or “strict liability” basis.

There are a few limited exceptions to this rule, so if for example the dog’s owner in this case had been able to show that the victim had provoked the attack, she would no longer have been able to rely on the “no fault” concept. She would then have had to prove negligence and fault on the dog owner’s part – a much harder task.

But the general risk for animal owners remains this – you can be held liable for damage caused by your animals without the slightest fault on your part.

Dog Owners – how to manage the risks

So let’s end off with a few practical tips on how to protect your pet, ensure the safety of others, and reduce your risk of legal liability –

  1. Understand the risk: You could be held legally responsible for any harm caused by your pet, including injuries to people and other animals, property damage, and emotional distress suffered by the victims.
  2. Check your insurance cover: Make sure you have in place Public Liability insurance that will cover you for any claim of this nature.
  3. Socialise and train your dog: Proper socialisation and training are vital to prevent aggressive behavior in dogs. Ensure that your dog interacts well with people and other animals.
  4. Supervision and restraint: Keep your dogs supervised and under control at all times. Follow leash laws in public spaces or whenever there is any risk of harm.
  5. Watch for the warning signs: Be aware of any signs or history of aggression or fear in your dog, and if necessary, seek professional help from a qualified animal behaviorist or trainer.
  6. Take legal advice: If you are ever involved in a dog-related incident, consult immediately with your lawyer to assess your case, explain your legal rights, and guide you through the necessary legal processes.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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Can You Claim Damages After Hitting a Pothole?

Can You Claim Damages After Hitting a Pothole?

“The American Automobile Association estimated in the five years prior to 2016 that 16 million drivers in the United States have suffered damage from potholes to their vehicle including tire punctures, bent wheels, and damaged suspensions with a cost of $3 billion a year.” (Wikipedia)

Pothole problems are by no means exclusive to South Africa, but we certainly do seem to have more than our fair share of them.

As a recent High Court decision illustrates, if you suffer any form of loss as a result of a pothole, hold whoever is responsible to account. Sue for your damages!

Injured motorcyclist awarded damages
  • Descending a pass on a provincial road with a group of fellow bikers, a motorcyclist leaned into a corner on a sharp bend then hit and went over a pothole. He lost control of the bike which then skidded across the road surface, injuring his shoulder and arm and damaging his clothing and motorbike.
  • He was taken by ambulance to hospital, underwent surgery, and although discharged after four days, still two years later is taking painkillers and undergoing physiotherapy for ongoing pain and restricted use of his shoulder and arm.
  • An expert confirmed that he had had no opportunity to avoid the pothole and thus the accident. It was also clear that an attempt had been made to repair the pothole.
  • He had suffered permanent injuries which “have left him greatly compromised and vulnerable.”
  • He sued the Province for damages, and was no doubt pleasantly surprised when the MEC made no effort to defend the action. However, he still had to prove his claim…
Proving negligence, and loss

The Court confirmed that the onus is on a claimant to prove negligence on the part of the local authority, even when, as in this case, the MEC had taken no steps to defend the claim and it was uncontested.

Finding from the uncontradicted evidence of the biker and his expert witnesses that the MEC was solely negligent for the accident in failing to live up to the responsibility “of building, maintaining road infrastructure and putting up road signs cautioning road users of the dangers of potholes”, the Court held him liable for the claimant’s proved damages.

The Court awarded the claimant damages of R850,000 in respect only of those aspects of his claim that he had led evidence to support (future medical treatment and general damages). That figure could increase – although he had failed to produce evidence in support of his further claims (for loss of earnings and damage to property), he can still re-institute action for them.

So, do you have a claim?

You quite possibly do have a claim for any losses you suffer after hitting a pothole. Considering our courts’ attitude to the responsibility of local authorities for road maintenance, proving negligence may not be that hard. Line up also evidence to support all aspects of your claim.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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A “Running Down” Damages Claim – Elite Athlete v Happy Snapper

A “Running Down” Damages Claim – Elite Athlete v Happy Snapper

“This is a running down case: literally” (Extract from judgment below)

The scene is Cape Town’s iconic Sea Point Promenade. An elite runner participating in a race knocks down a pedestrian out for a Sunday walk, causing serious injuries. The pedestrian sues both the runner and the race organiser for damages of R718,000.

The outcome is another reminder to us all to be aware of our surroundings at all times – a moment’s inattention can change everything in a split second. As the facts here illustrate…

The race-day collision and the R718,000 claim
  • Although the Court heard conflicting evidence as to detail, the setting for this unfortunate collision was common cause. A popular public space on a Sunday, replete with not only the normal pedestrians, cyclists, dog walkers and kite-flyers, but on this particular day also thousands of participants in a “Ladies Race”, ranging from athletes competing in an “elite race” to costumed “Fun Walk” entrants.
  • Going for a Sunday stroll with a friend and “in the wrong place at the wrong time” whilst blissfully unaware of the misfortune about to be visited upon her for her act of goodwill, the claimant happily consented to a request from a group of “Fun Walk” participants to take a “happy snap” of them.
  • Picture taken, she moved across the sidewalk to hand the camera back to its owner and a participant in the “elite race” ran straight into her, then ran off to finish her race.
  • Suggestions that the runner (approaching it seems at about 20 kph) shouted a warning to the effect of “get out of my way” and forcefully pushed the claimant aside were in dispute, but what was clear was that she was knocked to the ground and sustained a hip injury which resulted in an ambulance trip to hospital and hip replacement surgery.
  • The claimant sued both the runner and the race organiser for R718,000 in damages. The Court’s findings hold lessons for us all.
The race organiser off the hook

On the evidence, the race organiser and the race Marshall in the vicinity of the collision were cleared of any negligence.

The runner’s negligence

The runner, found the Court, was in a public space and should have been alive to the possibility of encountering other sidewalk users at close quarters. She had a duty to keep a proper look out and should have taken into account “the nonchalance and lack of interest of ordinary pedestrians who were out and about enjoying the fresh air rather than watching an athletics race. Ordinary human experience tells one that such persons might behave irrationally and get in the way, as it were.” (Emphasis added).

The runner was negligent in focussing only on the ground immediately ahead of her, “running as if in a bubble, oblivious to what was happening around her and intent only on achieving her goal of winning the race.” She could have avoided the collision with little effort and without seriously affecting her chances in the race.

The pedestrian’s 70% contributory negligence

However, in all the circumstances the Court held that the claimant (actually the executor of her estate as she had later died from unrelated causes) was only entitled to 30% of whatever damages could be proved.

She had been, said the Court, considerably more negligent than the runner. She had to be aware of the race, she knew runners were “whizzing” past her, and she had been warned of runners coming through.

The old ironic saying “no good deed goes unpunished” springs to mind, but the hard fact (in life as in law) is that we are often the architects of our own misfortune.

Be aware of your surroundings at all times!

It’s a hard lesson, but the law holds us to certain standards, and one of those is to keep a proper look out, particularly when in a public space. A moment’s inattention, and in a split second your life could change forever, with physical injuries compounded by the risk of damages claims and counterclaims of contributory negligence.

Take legal advice immediately if you are unlucky enough to be involved in an incident causing injury or other loss!

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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Property Owner and Body Corporate Liable After Child’s Electrocution?

Property Owner and Body Corporate Liable After Child’s Electrocution?

A recent High Court decision saw both a sectional title unit owner and his cupboard contractor held liable for damages suffered by an 11-year-old boy electrocuted by a communal tap. The complex’s body corporate and an electrician were also sued but escaped liability.

The reasons given by the Court for these contrasting outcomes provide valuable lessons for property owners, contractors, and bodies corporate.

Electrocuted when he turned on a tap
  • You don’t expect to be electrocuted when you turn on a tap, but that is what happened to an unfortunate boy, aged 11, who had offered to wash his mother’s car in a residential complex.
  • When he touched a communal tap to fill up a bucket of water he was electrocuted and unable to remove his hand for 1 to 2 minutes. Fortunately the tenant of the unit which was the source of the electric current arrived home in time to switch off the electricity so that the boy could be rescued.
  • He was rushed to hospital with serious injuries and his mother sued all the role-players for more than R3m in damages on his behalf.
  • To simplify as much as possible some very complicated facts, a cupboard contractor had been brought in to do work in the unit by the owner’s agent/employee at the request of a tenant. The contractor employed two workers who caused the initial problem by drilling through a wall and damaging the electrical insulation.
  • The owner’s agent then contracted an electrician to fix the problem, but he only compounded the danger by bungling the repair job and leaving the plumbing live.
  • The tenant, shocked (electrically, presumably also figuratively) when she turned on taps in the unit, switched off the electricity and reported the danger to the agent. Unfortunately the two workers, in her absence the next day, switched it on again – thus creating anew the dangerous situation that later that day led to the boy’s electrocution.

Let’s have a look at some of the legal principles that led the Court to its decision in regard to each of the role-players –

Your agent or employee doesn’t tell you of a dangerous situation – are you liable?

There was a dispute over whether the owner’s “agent” was legally an agent or an employee, and whether or not he had told the owner of the dangerous situation. But it made no difference, held the Court – the “agent’s” knowledge of the dangerous situation in the unit was attributed to the owner because (1) he had acquired that knowledge in the course of his employment, and (2) in the circumstances he had a duty to report it to the owner.

Make sure your agents and employees are trustworthy enough to tell you about any dangerous situations in your property!

Are you liable for your contractor’s negligence?

Clearly the workers employed by the contractor had caused the dangerous situation, firstly by damaging the electrical insulation and secondly by turning the electricity back on knowing of the danger. The contractor was accordingly liable, but what about the property owner who had employed him?

Our law is that you are not automatically liable for your contractor’s negligence, but you must “exercise that degree of care that the circumstances demand”. On the basis that “It is the principal, who selects his agent and represents him as a trustworthy person, and not the other party to a contract who has no say in the selection, who bears the risk……” (emphasis supplied), the Court found both the contractor and the unit’s owner liable for “the negligent omissions and/or acts on the part of their agents/employees.”

In any event both the “agent’s” inaction and the actions of the two workers “jointly contributed to the cause of the electrocution of the minor. Had either acted as they ought to have, the minor would not have been electrocuted.”

You are at risk for the conduct of any contractors and employees on your property, so again make sure they are trustworthy!

When is a body corporate liable?

A body corporate is as much at risk of being sued as any individual owner in a case such as this – it was presumably sued in this matter on the basis that the tap in question was a “communal” one and therefore under its control.

Its security officers had become aware of the situation when they queried the presence of the workers in the complex. However the claim against it failed as the evidence was that the child’s electrocution “was unforeseeable as far as it [the body corporate] was concerned. It had no duty to do anything while it was unaware of the danger posed. There had never been any problem with the electrical installation and it follows that what occurred was not reasonably foreseeable to it. Immediately the dangerous situation was brought to its attention it acted immediately.”

As a body corporate, take all reasonable steps to prevent dangerous situations arising in the complex in the first place, and take immediate action to rectify any that come to your notice!

What about the negligent electrician and the “chain of causation”?

Our law is that you are only liable if there is a “chain of causation” between your negligence and the damage resulting. So you can sometimes escape liability if there is a new “intervening cause” that interrupts that chain of causation.

In this case, the electrician’s failure to do the repairs properly was held to have been a “direct cause” of the incident. But his bacon was saved by the fact that the two workers, in switching the electricity back on, knew they were creating a dangerous situation anew. This made it sufficiently “unusual”, “unexpected” and not “reasonably foreseeable” for there to be – from the electrician’s point of view – a new “intervening cause” which interrupted the “chain of causation” between his negligence and the electrocution. The claim against him failed accordingly.

Any break in the “chain of causation” may come to your rescue if you are sued. But don’t count on it!

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

© LawDotNews

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